State v. Joseph Kuchman

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
No. 2014-0631

THE STATE OF NEW HAMPSHIRE

v.

JOSEPH KUCHMAN

Argued: November 12, 2015
Opinion Issued: April 19, 2016

Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant
attorney general, on the brief and orally), for the State.

Mirhashem Law Office, PLLC, of Manchester (Behzad Mirhashem on the
brief and orally), for the defendant.

BASSETT, J. The defendant, Joseph Kuchman, appeals decisions of the
Superior Court (Lewis and Brown, JJ.) related to his conviction by a jury on
one count of first degree assault. See RSA 631:1, I (2007). The defendant
argues that the trial court erred when it denied his request for a bill of
particulars, denied his multiple motions for a mistrial, and admitted evidence
of a telephone conversation. For the reasons that follow, we affirm.

The jury could have found the following facts. On January 19, 2011, the
victim was working at a bar in Rochester. At approximately midnight, the
defendant and his friend, Joshua Texeira, entered the bar. While there, the
defendant and Texeira became loud. The victim and the bartender repeatedly
asked them to be quiet, but they did not do so. Following an argument with
the victim and the manager of the bar, the defendant and Texeira were escorted
outside, where the defendant threatened the victim and stated that he was
going to come back for him. Eventually, the defendant and Texeira walked
away.

A few minutes later, the victim went out of the back door of the bar to
take out the trash and to smoke. The victim saw the defendant and Texeira
standing near one of the dumpsters, and asked “if they had lost something.”
Neither responded, but both the defendant and Texeira approached the victim.
Texeira then took out an expandable baton that had been in his truck, and hit
the victim with it. The victim fell down, and was kicked several times. The
victim testified that, during the attack, the defendant asked him if he “was a
tough guy now.”

Once the attack stopped, the victim went back inside the bar, and
several people ran outside and chased Texeira and the defendant to Texeira’s
truck. The police and paramedics eventually arrived at the scene, and the
victim was transported to the hospital. The victim suffered multiple severe
injuries. The victim later identified, by way of photographic lineups, both the
defendant and Texeira as his attackers.

A grand jury issued one indictment against the defendant alleging two
counts of first degree assault. See RSA 631:1, I. Each count alleged that the
defendant, acting “in concert with Joshua Texeira,” caused bodily injury to the
victim. The defendant was also charged by information with two counts of
simple assault. See RSA 631:2-a (2007). One of the simple assault charges
was nolle prossed prior to trial. After the State rested at trial, the trial court
dismissed one of the first degree assault counts. The jury acquitted the
defendant of the remaining simple assault charge, but found him guilty of the
remaining first degree assault count. This appeal followed.

I. Bill of Particulars

On appeal, the defendant first argues that the trial court erred when it
denied his motion for a bill of particulars, in which he argued that the first
degree assault indictment did not provide him with information concerning his
alleged criminal acts sufficient to permit him to properly prepare for trial. The
first count, which was ultimately dismissed by the trial court, alleged that the
defendant “in concert with Joshua Texeira, purposely cause[d] serious bodily
injury to [the victim] by striking him in the face with a baton or blunt object,
fracturing [the victim’s] nose.” The second count alleged that the defendant,
acting “in concert with Joshua Texeira, knowingly cause[d] bodily injury to [the
victim] by means of a deadly weapon by striking him in the head and body with

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a baton or blunt object, fracturing [the victim’s] nose and causing lacerations
to his scalp and face.”

The State filed an objection to the defendant’s motion, arguing that the
indictment was “more than sufficient for the defendant to prepare his defense
as it puts him on notice that the State has to prove that he in some way
solicited, aided, agreed or attempted to aid in the First Degree Assault of [the
victim].” The trial court denied the defendant’s motion.

On appeal, the defendant argues that the trial court erred when it denied
his motion for a bill of particulars because the indictment charging him with
acting “in concert with” Texeira implicated numerous theories of liability, and,
therefore, he did not know which theory of liability that the State would rely
upon at trial. According to the defendant, he was prejudiced and unable to
prepare an intelligent defense because “[e]ven as he was about to deliver his
closing argument,” he “still did not know what theory of . . . liability would be
relied upon by the State.” The defendant also asserts that, because the State
proceeded against him solely as an accomplice, rather than as both an
accomplice and a principal, we should subject the indictment to more stringent
review.

Part I, Article 15 of the New Hampshire Constitution “requires that an
indictment describe the offense with sufficient specificity to ensure that the
defendant can prepare for trial and avoid double jeopardy.” State v. Woodard, 146 N.H. 221, 227 (2001) (quotation omitted). “An indictment generally is
sufficient if it recites the language of the relevant statute; it need not specify
the means by which the crime was accomplished or other facts that are not
essential to the elements of the crime.” State v. Carr, 167 N.H. 264, 269 (2015)
(quotation omitted).

A “bill of particulars is, in this State, a tool for clarifying an inadequate
indictment or complaint.” State v. Sanborn, 168 N.H. ___, ___, 130 A.3d 563,
577 (2015) (quotation omitted); see State v. Kelly, 160 N.H. 190, 196 (2010)
(noting that “it may be good practice to ask for a bill of particulars if a
defendant is unsure of the specific acts alleged”). “The purpose of a bill of
particulars is to protect a defendant against a second prosecution for an
inadequately described offense and to enable him to prepare an intelligent
defense.” Sanborn, 168 N.H. at ___, 130 A.3d at 577 (quotation omitted); see
State v. Chick, 141 N.H. 503, 507 (1996) (“The State is not required to provide
a bill of particulars except when necessary for the preparation of a defense or
to preclude a later unconstitutional prosecution.” (quotation omitted)). “The
decision whether to grant a motion for a bill of particulars is committed to the
trial court’s sound discretion.” State v. Sweeney, 151 N.H. 666, 678 (2005).
“We will not reverse the trial court’s decision unless the defendant shows that
it was clearly untenable or unreasonable to the prejudice of his case.” Id.

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 Here, the two-count indictment alleged that the defendant acted “in
concert with” Texeira to cause injury to the victim. We have “consistently
stated that language in an indictment alleging that a defendant acted ‘in
concert with’ another is sufficient to charge the defendant both as a principal
and as an accomplice.” State v. Winward, 161 N.H. 533, 539 (2011) (quotation
omitted). Thus, even assuming that — despite the “in concert with” language
used in the indictment here — as the defendant asserts, the State proceeded
against him solely as an accomplice, he was sufficiently charged at least as an
accomplice to the assault. Accordingly, the indictment provided sufficient
notice to the defendant that he was charged, at the very least, with soliciting,
aiding, or attempting to aid Texeira in causing bodily injury to the victim
through the use of a baton or other blunt object. See id. (concluding in
attempted burglary case that, because “indictment clearly alleged both
principal and accomplice liability, it provided sufficient notice to the defendant
that he was charged with either removing the window screen himself or
soliciting, aiding or attempting to aid another in removing the window screen”).

Moreover, all of the elements of first degree assault were alleged in the
indictment. See RSA 631:1, I (describing elements of first degree assault). As
we have stated, “[a]n indictment is generally sufficient if it recites the language
of the relevant statute: typically it need not specify the means by which the
crime was accomplished, or other facts that are not essential elements of the
crime.” Chick, 141 N.H. at 506; see Carr, 167 N.H. at 269.

Additionally, because the defendant was charged at least as an
accomplice, “there is no further and independent requirement to identify the
acts by which [the] defendant may have committed the offense, or to limit proof
of guilt to acts specifically pleaded.” Winward, 161 N.H. at 540 (quotation and
brackets omitted). “Generally, there is no requirement that the State allege
each of the defendant’s possible acts as an accomplice.” Id. at 541; see State v.
Doucette, 146 N.H. 583, 590 (2001) (stating that “an accomplice may be
convicted on the basis of overt acts not specifically alleged in an indictment”).

Furthermore, regardless of whether the State ultimately proceeded
against the defendant solely as an accomplice, the indictment alleged both
principal and accomplice liability due to the “in concert with” language. See
Winward, 161 N.H. at 539. We, therefore, disagree with the defendant that we
should subject the indictment to more stringent review.

As we have stated, the “question is not whether the indictment could
have been more certain and comprehensive, but whether it contains the
elements of the offense and enough facts to warn a defendant of the specific
charges against him.” State v. Marshall, 162 N.H. 657, 661-62 (2011). That
requirement has been met in this case, and we, therefore, conclude that the
indictment was sufficient.

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 Nevertheless, the defendant argues that the trial court should have
granted his motion for a bill of particulars because there were “at least eight
distinct theories of accomplice liability potentially implicated in the case” and
his defense preparation “would be impacted” by the particular theory advanced
by the State. We disagree. Although “there may be cases in which . . .
reasonable trial preparation would require an allegation of the specific conduct
by which an accomplice is supposed to have aided in the commission of the
offense, such specification is not always required.” Doucette, 146 N.H. at 590.
That specification was not required here.

It appears that the defendant hoped to use a bill of particulars to simplify
his defense strategy by forcing the State to narrow its theory of liability. That,
however, is not the purpose of a bill of particulars; rather, a bill of particulars
is meant to clarify an inadequate indictment and enable the defendant to
prepare an intelligent defense. See Sanborn, 168 N.H. at ___, 130 A.3d at 577.
As noted above, the indictment here was adequate. Moreover, the fact that the
defendant — in his motion for reconsideration filed prior to trial — set forth
several distinct theories of liability that the prosecution could rely upon at trial,
demonstrates that he was able to anticipate those theories and, thus, prepare
an intelligent defense.

Therefore, “if any prejudice [to the defendant] arose from these facts it
was not undue prejudice.” Winward, 161 N.H. at 541 (brackets omitted); see
Sweeney, 151 N.H. at 678 (stating that we will not reverse a trial court’s
decision regarding a motion for a bill of particulars “unless the defendant
shows that it was clearly untenable or unreasonable to the prejudice of his
case”). We conclude that the trial court did not unsustainably exercise its
discretion when it declined to grant the defendant’s motion for a bill of
particulars.

II. Acting in Concert

The defendant next argues that the trial court erred when it denied his
motion for a mistrial after the State had elicited certain testimony from Texeira
at trial. During the State’s direct examination of Texeira, after Texeira had
provided an account of the incident in question, the prosecutor asked, “So you
were convicted of first degree assault [against the victim] for acting in concert
with [the defendant], right?,” and Texeira responded, “Yes, I was.” The
defendant then objected, requested a curative instruction, and moved for a
mistrial. The trial court sustained the objection and provided a curative
instruction, but denied the motion for a mistrial. The defendant
unsuccessfully sought reconsideration.

“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.

5
Russo, 164 N.H. 585, 589 (2013) (quotation omitted); see State v. Wells, 166
N.H. 73, 76 (2014) (“A mistrial is appropriate when the circumstances indicate
that justice may not be done if the trial continues to a verdict.” (quotation
omitted)). “To warrant a mistrial, 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). “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.” Russo, 164 N.H. at 589 (quotation omitted). “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).

On appeal, the defendant argues that the testimony elicited from Texeira
was “highly prejudicial” and allowed the jury to improperly infer that, because
Texeira had already been found guilty of assaulting the victim “in concert with”
the defendant, then the defendant must also be guilty of the same crime. For
support, the defendant relies upon cases that have held that evidence that a
co-perpetrator of a crime was convicted is inadmissible for substantive
purposes because of the potential for prejudice. See, e.g., Clemmons v. State,
720 A.2d 1170, 1173 (Md. 1998) (explaining that “ordinarily, the conviction or
guilty plea of a co-perpetrator may not be used as substantive evidence of
another’s guilt” and collecting cases); State v. Marcano, 138 N.H. 643, 646
(1994) (stating that, in the context of a conspiracy case, the “potential for
prejudice is overwhelming where evidence of a co-conspirator’s conviction is
admitted for substantive purposes” because the “jury may abdicate its duty
and regard the issue of the remaining defendant’s guilt as settled and the trial
as a mere formality” (quotation omitted)).

Although the testimony at issue in this case may have been prejudicial,
and although a mistrial may have been warranted had the testimony been
admitted into evidence by the trial court, we disagree with the defendant that,
under the circumstances of this case, a mistrial was required. Here, the
testimony was not admitted against the defendant; rather, the trial court
sustained the defendant’s objection to the testimony and immediately gave a
curative instruction, in which it told the jury that it could not consider or use
Texeira’s conviction as evidence against the defendant. The trial court further
explained that the jury in Texeira’s case had made no determination regarding
the defendant’s guilt in this case. Cf. Clemmons, 720 A.2d at 1173
(“[O]rdinarily, the conviction or guilty plea of a co-perpetrator may not be used
as substantive evidence of another’s guilt.” (emphasis added)). Because the
jury is presumed to follow instructions, we conclude that the trial court’s
instruction in this case effectively cured any prejudice to the defendant. See
State v. Gibson, 153 N.H. 454, 460-61 (2006) (concluding that trial court’s
curative instruction “clearly instructed the jury to disregard [a witness’s]

6
remark and not draw any inferences from it,” and, therefore, it “sufficiently
cured any prejudice stemming from [that] statement”); cf. United States v.
Ofray-Campos, 534 F.3d 1, 23-24 (1st Cir. 2008) (explaining that trial court’s
statement regarding incarceration of absent co-defendants was prejudicial, and
noting that a “proper instruction” to jury to not consider co-defendants’
incarcerated or guilty status when reaching verdict as to defendants on trial,
could have “safeguard[ed]” against statement’s prejudice). Accordingly, we
conclude that the trial court did not unsustainably exercise its discretion when
it denied the defendant’s motion for a mistrial arising out of the exchange
between the prosecutor and Texeira.

III. Admission of Telephone Conversation

Next, the defendant argues that the trial court should have excluded
from evidence a telephone conversation between Texeira and Texeira’s mother.
He asserts that the conversation was inadmissible under New Hampshire Rule
of Evidence 403 because any probative value that it had was substantially
outweighed by the danger of unfair prejudice.

During his direct examination by the State, Texeira testified that he was
deposed prior to trial. He acknowledged that he had lied during the deposition
and later changed some of the answers that he had provided. One of the
deposition lies concerned whether Texeira used a weapon against the victim; in
his deposition, he claimed that he did not have a weapon during the attack,
and at trial he testified that, in fact, he had hit the victim with a baton. When
the State asked during trial whether he had lied at the deposition to protect the
defendant, Texeira responded, “No. It had nothing to do with him.”

Over the defendant’s objection, the State then read from a transcript of a
telephone conversation between Texeira and his mother. Texeira testified that
the telephone conversation took place after his deposition, but before he had
changed his deposition testimony. During the conversation, Texeira told his
mother:

So, I -- like I don’t know what to do. I need to get a hold of this guy
and, like, I pretty much have to change these questions. But the
thing is, it’s about the weapon. So if I change it and say, oh yeah,
well, I did have a weapon like I screwed up, I wasn’t thinking right, I
got to fricking change it, I don’t know if that’s going to screw [the
defendant] or not. You know what I mean? Because now they can
prove -- because the way the questions are worded, if I say, oh,
well, I did have a weapon and we went to my truck to grab a
weapon, then they’re going to be like, well, obviously [the defendant]
knew what -- we were planning to do this or something. . . . So
they’re going to get him with acting in concert.

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Thereafter, in response to a request from the defense for a limiting instruction,
the trial court instructed the jury that it was to consider the conversation only
for the purpose of impeaching Texeira and not as substantive evidence of the
defendant’s guilt.

The defendant argues on appeal that the conversation between Texeira
and Texeira’s mother should have been excluded under Rule 403 because the
danger of unfair prejudice from admission of the conversation substantially
outweighed any probative value. We disagree.

“Rule 403 is an exclusionary rule that cuts across the rules of evidence.”
State v. Miller, 155 N.H. 246, 251 (2007) (quotation omitted); see N.H. R. Ev.
403. Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative
evidence.” N.H. R. Ev. 403. “We accord the trial court considerable deference
in determining whether to admit or exclude evidence under Rule 403, and we
will not disturb its decision absent an unsustainable exercise of discretion.”
State v. Perri, 164 N.H. 400, 408 (2012). “To show an unsustainable exercise
of discretion, the defendant must demonstrate that the court’s ruling was
clearly untenable or unreasonable to the prejudice of his case.” Id.

The conversation between Texeira and his mother had significant
probative value. As the trial court correctly observed, the conversation
contradicted Texeira’s testimony that he had not lied during his deposition to
protect the defendant. The conversation, therefore, was highly probative of
Texeira’s credibility — a crucial factor in this case given Texeira’s role in the
incident and the fact that, other than the defendant and the victim, Texeira
was the only person involved in, and witness to, the attack itself. Thus, we are
not persuaded by the defendant’s assertion that, because Texeira had already
admitted to lying at his deposition, the conversation with his mother “had
minimal probative value” as impeachment evidence. See State v. Hebert, 158
N.H. 306, 312 (2009) (finding unpersuasive defendant’s argument that other
means State used to impeach him minimized probative value of his habitual
offender conviction).

We next consider whether the danger of unfair prejudice to the defendant
from the admission of the conversation substantially outweighed its probative
value. See Wells, 166 N.H. at 80. With little explanation, the defendant
contends that the conversation was “highly and unfairly prejudicial.” We
disagree.

“Evidence is unfairly prejudicial if its primary purpose or effect is to
appeal to a jury’s sympathies, arouse its sense of horror, provoke its instinct to
punish, or trigger other mainsprings of human action that may cause a jury to

8
base its decision on something other than the established propositions in the
case.” State v. Cassavaugh, 161 N.H. 90, 98 (2010) (quotation omitted).
“Unfair prejudice is not, of course, a mere detriment to a defendant from the
tendency of the evidence to prove his guilt, in which sense all evidence offered
by the prosecution is meant to be prejudicial.” Id. (quotation omitted).
“Rather, the prejudice required to predicate reversible error is an undue
tendency to induce a decision against the defendant on some improper basis,
commonly one that is emotionally charged.” Id. (quotation omitted).

Here, there is little, if anything, within Texeira’s conversation with his
mother that would appeal to a jury’s sympathies, arouse its sense of horror,
provoke its instinct to punish, or otherwise induce a decision against the
defendant on an improper basis. Compare State v. Willis, 165 N.H. 206, 220
(2013) (concluding that risk of undue prejudice from questions regarding
witness’s motive to lie was minimal because, “unlike an improper appeal to
emotion, the inquiry into a witness’s bias provides important and legitimate
information for the fact finder to consider”), with State v. Jenot, 158 N.H. 181,
186-87 (2008) (testimony that defendant had been sexually assaulted “would
have an undue tendency to create sympathy with the jury and induce a
decision on some improper basis, one that is emotionally charged” because
jurors could have “based their decision upon the defendant’s status as a
victim” rather than upon facts adduced at trial (quotation and ellipses
omitted)). Accordingly, given the conversation’s considerable probative value
and the minimal danger of unfair prejudice, we conclude that the trial court
did not unsustainably exercise its discretion when admitting the conversation
under Rule 403.

Although the defendant also asserts that the conversation constitutes
inadmissible hearsay, this argument was neither raised in his notice of appeal,
nor included within his motion to add issue that we granted. Accordingly, it is
not preserved for our review. See State v. Blackmer, 149 N.H. 47, 49 (2003)
(“An argument that is not raised in a party’s notice of appeal is not preserved
for appellate review.”).

IV. Limiting Instruction

The defendant next argues that, because the trial court “delayed” several
days in providing the limiting instruction regarding Texeira’s telephone
conversation with his mother, the trial court erred when it declined to grant a
mistrial. After the State had read from the transcript containing the
conversation, the defendant requested that the trial court provide a limiting
instruction to the jury. The defendant sought to have the trial court explain to
the jury that the conversation was admitted for impeachment purposes only,
and not as substantive evidence of the defendant’s guilt. In response, the State
argued that the conversation was admissible substantively. The trial court
declined to provide an instruction at that time, explaining that it wanted the

9
parties to brief the issue and that it needed time for research. The trial court
then excused the jury for the day. After the jury left, defense counsel stated to
the trial court that he “agree[d] 100 percent [that] decisions made in haste are
never as good as decisions that are thought about.”

Thereafter, the State filed a motion in which it argued that the
conversation was admissible both substantively and for impeachment
purposes. In response, the defendant filed a motion for a mistrial in which he
argued that, at a minimum, a limiting instruction should be provided. After a
hearing on the defendant’s motion for a mistrial, the trial court denied the
motion, but decided to give a limiting instruction to the jury. When the jury
returned, which occurred five calendar days after the State had read from the
transcript, the trial court instructed the jury that it was to consider the
conversation only for the purpose of impeaching Texeira and not as substantive
evidence of the defendant’s guilt.

The defendant now argues that, because the trial court declined to
provide an immediate limiting instruction regarding the conversation, a mistrial
should have been granted. We disagree.

First, although the trial court provided its limiting instruction five
calendar days after the State had read from the conversation transcript, the
limiting instruction was provided immediately upon the jury’s return to the
courtroom on the very next trial day. No evidence was presented between the
time that the defendant requested, and the trial court gave, the limiting
instruction. See United States v. Fench, 470 F.2d 1234, 1241 (D.C. Cir. 1972)
(concluding that, although trial court did not provide limiting instruction
immediately upon admission of testimony, there was no reversible error
because adequate instruction was provided the next day and no additional
evidence was presented before instruction was provided). We are not convinced
that the defendant suffered any significant degree of prejudice — let alone
prejudice that “constituted an irreparable injustice,” Russo, 164 N.H. at 589
(quotation omitted) — by the trial court’s decision to allow the parties time to
brief, and then argue, the admissibility of the conversation and whether a
limiting instruction was necessary. See State v. Angoy, 746 A.2d 1046, 1052-
53 (N.J. Super. Ct. App. Div. 2000) (finding that, although a “prompt delivery of
limiting instructions” was “preferable,” there was no prejudice and no basis for
reversal when two weeks elapsed between admission of evidence and delivery of
limiting instruction). Accordingly, we conclude that the trial court did not
unsustainably exercise its discretion when it declined to grant the defendant’s
motion for a mistrial on these grounds.

V. Examination of Texeira

The defendant next asserts that the trial court should have granted a
mistrial because of “the tenor and content of the prosecutor’s examination of

10
Texeira.” At trial, the defendant argued that a mistrial was warranted because
the State had called Texeira for the primary purpose of impeaching him and to
place before the jury otherwise inadmissible evidence. The trial court denied
the defendant’s motion, explaining that the State has a right to impeach its
own witness. The trial court also explained that the impeachment of Texeira
did not constitute subterfuge because, as the only other person with the
defendant during many of the disputed events, Texeira provided information
that was instrumental to the State’s case. On appeal, the defendant reiterates
the arguments that he made before the trial court. We disagree with the
defendant that the trial court unsustainably exercised its discretion when it
declined to grant his motion for a mistrial.

Rule 607 of the New Hampshire Rules of Evidence provides that the
“credibility of a witness may be attacked by any party, including the party
calling the witness.” N.H. R. Ev. 607. Although this rule expressly permits the
State to impeach its own witnesses, we have held that “the State may not use a
statement under the guise of impeachment for the primary purpose of placing
before the jury otherwise inadmissible substantive evidence.” State v. Soldi, 145 N.H. 571, 574 (2000). “This limitation prevents the State from using
impeachment by prior inconsistent statement as a mere subterfuge to avoid the
hearsay rule.” Id. However, “[w]here the State has called a witness whose
corroborating testimony is instrumental to constructing the State’s case, the
State has the right to question the witness, and to attempt to impeach [the
witness], about those aspects of [the witness’s] testimony that conflict with the
State’s account of the same events.” Id. (quotation and brackets omitted). “In
analyzing whether impeachment of a party’s own witness would constitute
subterfuge, [we] look at whether the witness’s testimony contains relevant
evidence other than the impeaching evidence.” Id.

Here, although the State impeached Texeira at length during its direct
examination of him, Texeira also provided evidence that was relevant and
instrumental to the State’s case against the defendant. As the trial court
correctly observed, Texeira was the only person with the defendant during
critical parts of the night in question. As an admitted participant in the attack,
Texeira’s testimony also provided pertinent evidence concerning the attack and
the defendant’s role in it. Accordingly, the State’s impeachment of Texeira, its
witness, did not constitute subterfuge, and we, therefore, conclude that the
trial court did not unsustainably exercise its discretion when it declined to
grant the defendant’s motion for a mistrial on these grounds. See id.
(concluding that, because victim was “the only person other than the defendant
in the room when the assault occurred,” her testimony regarding the assault
was “instrumental to the State’s case” and impeachment was not used merely
to introduce otherwise inadmissible evidence); see also State v. Wamala, 158
N.H. 583, 596-97 (2009) (permitting impeachment of two witnesses because
their testimony also contained evidence that was relevant and instrumental to
State’s case).

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VI. Defendant’s Silence

Finally, the defendant argues that a mistrial should have been granted
when, during the State’s cross-examination of the defendant, the State asked
why he was not “willing to give” his version of the incident “until now.” After
the State asked this question, the defendant objected and moved for a mistrial,
arguing that the question constituted an impermissible comment upon the
defendant’s right to remain silent. The trial court gave the jury a limiting
instruction, and, after the defendant argued that the instruction did not
sufficiently address his concern, the trial court gave further instruction. The
trial court, however, did not grant a mistrial.

On appeal, the defendant argues that, because he has a constitutional
right not to have his post-arrest silence used to impeach him at trial, the trial
court erred when it declined to grant a mistrial. The defendant asserts that we
“should hold that it is improper to cross-examine a defendant about how he did
not come forward until he testified at trial to provide his account of the charged
incident.”

Although the defendant raises his appellate arguments under both the
State and Federal Constitutions, the defendant has failed to demonstrate that
he preserved an argument under the State Constitution. See Bean v. Red Oak
Prop. Mgmt., 151 N.H. 248, 250 (2004). To “preserve a state constitutional
claim, the defendant must: (1) raise it in the trial court; and (2) specifically
invoke a provision of the State Constitution in his brief.” State v. Oakes, 161
N.H. 270, 285 (2010). Here, the defendant’s mere reference to his right to
remain silent during his argument before the trial court was insufficient to
preserve a state constitutional claim for our review. See In the Matter of
Kempton & Kempton, 167 N.H. 785, 793 (2015) (concluding that respondent’s
“mere reference to ‘due process’” at a hearing and in a motion was insufficient
to preserve state constitutional claim for review). Therefore, we confine our
analysis to the Federal Constitution.

The United States Supreme Court has held that “the use for
impeachment purposes of [a defendant’s] silence, at the time of arrest and after
receiving Miranda warnings, violate[s] the Due Process Clause of the
Fourteenth Amendment.” Doyle v. Ohio, 426 U.S. 610, 619 (1976); see
Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). However, the Court has
qualified this general holding by explaining that the Federal Constitution is not
violated when the prosecution impeaches a defendant’s testimony by
referencing either the defendant’s pre-arrest silence, or the defendant’s post-
arrest, but pre-Miranda, silence. See Fletcher v. Weir, 455 U.S. 603, 604-07
(1982) (post-arrest, pre-Miranda silence); Jenkins v. Anderson, 447 U.S. 231,
238-40 (1980) (pre-arrest silence). As the Supreme Court has stated, “the
Constitution does not prohibit the use for impeachment purposes of a

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defendant’s silence prior to arrest, or after arrest if no Miranda warnings are
given.” Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) (citation omitted).

Thus, unless Miranda warnings have been given to a defendant, the Due
Process Clause of the Fourteenth Amendment does not prohibit the use of a
defendant’s silence to impeach him or her at trial. See Fletcher, 455 U.S. at
607 (“In the absence of the sort of affirmative assurances embodied in the
Miranda warnings, we do not believe that it violates due process of law for a
State to permit cross-examination as to postarrest silence when a defendant
chooses to take the stand.”); see also State v. Hill, 146 N.H. 568, 577 (2001)
(explaining that “a defendant who has not received Miranda warnings cannot
rely on Doyle in support of a claim that the use of his silence violates his right
to due process under the Fourteenth Amendment”).

Here, the defendant has not offered any evidence that he ever received
Miranda warnings. See Bean, 151 N.H. at 250 (stating that it “is the burden of
the appealing party . . . to provide this court with a record sufficient to decide
[his or] her issues on appeal”). Accordingly, we conclude that the State’s
questioning of the defendant during cross-examination concerning his silence
prior to trial did not violate his due process rights under the Federal
Constitution. See Brecht, 507 U.S. at 628; Fletcher, 455 U.S. at 607.

To the extent that the defendant argues that his rights under the Fifth
Amendment of the United States Constitution were violated because of the
State’s inquiry at trial, we decline to address his argument because it is not
sufficiently developed for judicial review. See State v. Roy, 167 N.H. 276, 290
(2015) (declining to address insufficiently developed argument); see also Hill,
146 N.H. at 577 (explaining that the “issue of Fourteenth Amendment due
process” and “the issue of any Fifth Amendment rights as incorporated by the
Due Process Clause of the Fourteenth Amendment” are “distinct concepts”).
Accordingly, we conclude that the trial court did not unsustainably exercise its
discretion when it declined to grant a mistrial on these grounds.

Any arguments that the defendant raised in his notice of appeal that he
has not briefed are deemed waived. See Blackmer, 149 N.H. at 49.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.

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