State of New Hampshire v. Tina Cehic

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0231, State of New Hampshire v. Tina
Cehic, the court on September 18, 2017, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, Tina Cehic, appeals her convictions, following a jury trial,
of accomplice to reckless conduct with a deadly weapon. See RSA 626:8
(2016); RSA 631:3 (2016). She argues that the Superior Court (Smukler, J.)
erred by: (1) giving the jury a confession instruction; (2) unfairly criticizing her
counsel, thereby allegedly prejudicing the jury against her and impairing her
right to testify; and (3) finding the evidence sufficient to support the
convictions.

The defendant first argues that the trial court erred by giving the jury a
confession instruction. “Whether a particular jury instruction is necessary,
and the scope and wording of jury instructions, are within the sound discretion
of the trial court, and we review the trial court’s decisions on these matters for
an unsustainable exercise of discretion.” State v. Sanborn, 168 N.H. 400, 420
(2015) (quotation omitted). “To show that the trial court’s decision is not
sustainable, the defendant must demonstrate that the court’s ruling was
clearly untenable or unreasonable to the prejudice of [her] case.” Id. (quotation
omitted).

The record shows that defense counsel asked the court, during a
conference after the State rested, if they would be discussing jury instructions,
noting that “[t]here’s a few here that I believe . . . need to be given.” After the
defendant rested, the court noted that defense counsel had “raised two points
already,” including the issue of whether to give a confession instruction.
Defense counsel asserted that “there are points during [the defendant’s
videotaped police interview] where it may be concluded from what [the
defendant] said that she knew what was happening and drove, which . . .
would be a confession or at least would be the equivalent of a confession.” The
court observed that, in its view, the defendant “never confessed,” and
suggested to defense counsel that “there may be more harm to your client if
they hear the judge say there was a confession.” The court advised counsel
that it was “not making a ruling now,” but that it was “raising the issue” for
defense counsel “to think about and discuss with [his] client over the
weekend.”
 The defendant argues that, “after discussion with her counsel and upon
consideration of the evidence admitted and the judge’s observations, [she]
decided not to request the [confession] instruction.” The defendant does not
assert, however, that her counsel informed the court of her decision before the
court instructed the jury. Instead, she argues that the court should have
understood that she no longer wanted the instruction because her counsel did
not specifically request it during a conference with the court before the
instructions were given.

The record shows that the trial court reasonably believed that the
defendant wanted the confession instruction to be given, and we find no error
in the court’s decision to give it prior to being informed otherwise. See
Sanborn, 168 N.H. at 420. Once defense counsel informed the court that the
defendant did not want the instruction to be given, the court instructed the
jury to disregard it. To the extent that the defendant argues that the court’s
curative instruction was erroneous or misleading, she has failed to show that
she raised this issue with the trial court; thus, it is not preserved. See Berliner
v. Clukay, 150 N.H. 80, 82-83 (2003) (party must provide trial court with
opportunity to correct alleged error in jury instruction to preserve issue for
appellate review).

The defendant next argues that the trial court erred by “castigating” her
counsel, “within earshot of [her] and, most likely, the jurors,” for exceeding the
estimated three-day length of trial given at the pretrial conference. She claims
that, after overhearing the court’s remarks at the bench, she “felt unable to
testify in her own defense,” and that the trial court “chilled [her] right to testify
and likely prejudiced the jury against her and her counsel.” The record does
not support the defendant’s claims.

The record shows that the State’s final witness finished testifying shortly
after 10:30 a.m., on the third day of trial. The State requested that the
videotape of the defendant’s police interview be admitted into evidence and
given to the jurors to view during their deliberations. Defense counsel
objected, and requested that the interview be played during the trial. The trial
court, noting that the interview was two hours and fifteen minutes long,
observed that “if we don’t finish today,” then “there are going to be
consequences.” Specifically, the court noted that, “I don’t have monitors for
next week. I’m not scheduled to be here next week.”

Defense counsel objected that the three-day trial estimate was only an
estimate, and that “it was based on what the State said” at the pretrial
conference. Defense counsel stated that he was “feeling threatened” by the
court’s reference to “consequences.” After specifically advising defense counsel
that it was “not cutting [him] off,” and that the defense was “entitled to play the
video,” the court allowed the video to be played during the trial.

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 During a break, defense counsel advised the court that the defendant
had overheard the court’s statement during the bench conference regarding
“consequences,” and that “she wondered whether the consequences would be
against the State or against her.” Noting the proximity of the jurors to the
bench, defense counsel also suggested that the jurors “most likely heard part of
what was going on at the bench,” and asked the court to voir dire the jurors to
determine what they had overheard. The court denied the request, noting that
there was no basis to believe that the jurors heard “anything more than the
murmur that they usually hear at a bench conference.” The court also advised
the parties that it had been in communication with the clerk, who was able to
obtain monitor coverage for the following week, and that the court would be
available for trial the following week.

Defense counsel advised the court that the defendant was not going to
testify based, in part, upon the court’s comments about “consequences.” The
trial court advised defense counsel that the defendant “has an absolute right”
to testify, and, after hearing defense motions, noted that “we’re not going to
finish today under any circumstances.” Defense counsel, after conferring with
the defendant, confirmed that the defendant would not be testifying.

The trial court has broad discretion in managing the proceedings before
it. In the Matter of Conner & Conner, 156 N.H. 250, 252 (2007). We review a
trial court’s rulings in this area under an unsustainable exercise of discretion
standard. Id. To establish that the court erred under this standard, the
defendant must demonstrate that the court’s rulings were clearly untenable or
unreasonable to the prejudice of her case. Id. In this case, even if the jury and
the defendant overheard everything that was said during the bench
conferences, the court’s comments about the three-day trial estimate were not
directed solely at defense counsel. The trial court repeatedly stated that in
“talking about the estimate that you made,” it was referring to “the plural you,”
meaning counsel for both parties. The court’s comments regarding
“consequences” referred to the fact that the judge was not scheduled to be in
the courthouse the following week, and that there were no monitors available
for trial. The court stated that “never under any circumstances” would it hold
counsel’s mistaken estimate “against that counsel’s client.” Therefore, we
conclude that the record does not support the defendant’s arguments that the
trial court “castigated” her counsel, prejudiced the jury, or infringed upon her
right to testify. See id.

The defendant next argues that the evidence was insufficient to prove
that she acted with the intent required to prove accomplice liability. To prevail
upon her challenge to the sufficiency of the evidence, the defendant must
demonstrate that no rational trier of fact, viewing all of the evidence and all
reasonable inferences from it in the light most favorable to the State, could have
found guilt beyond a reasonable doubt. State v. Collyns, 166 N.H. 514, 517
(2014). To prove accomplice liability, the State must prove that the accomplice:
“(a) intended to promote or facilitate another’s unlawful or dangerous conduct;
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and (b) acted with the culpable mental state specified in the underlying statute
with respect to the result.” State v. Rivera, 162 N.H. 182, 187 (2011)
(quotations and emphasis omitted).

The defendant argues that the principal’s conduct was reckless and
unexpected, not intentional or purposeful, and it would be “absurd to claim
that [she] acted with any settled purpose in aid or support of [the principal’s]
unexpected reckless actions.” However, we have held that liability can flow
from an accomplice’s conduct provided that the result of the principal’s
conduct was a reasonably foreseeable consequence of the accomplice’s
conduct. Rivera, 162 N.H. at 187. For example, in Rivera, we held that the
defendant was liable as an accomplice to reckless second-degree murder
because the result was a reasonably foreseeable consequence of the
defendant’s actions in planning an armed burglary and driving the armed
principal to the victim’s home. Id. In this case, the principal testified that he
was a passenger in the defendant’s vehicle. When he looked in the rear-view
mirror and spotted the individuals with whom he had argued earlier in the
evening, and in whose presence he had brandished and cocked his firearm, the
defendant made a U-turn, so as to pass close to their vehicle. Under these
circumstances, we conclude that the evidence was sufficient to show that the
principal’s reckless discharge of a firearm from the defendant’s vehicle was a
reasonably foreseeable consequence of her conduct. See id.

In her reply brief, the defendant argues that the trial court’s instructions
on accomplice liability were “confusing” and “facially contradictory.” We
decline to consider issues raised for the first time on appeal in a reply brief.
See Panas v. Harakis & K-Mart Corp., 129 N.H. 591, 617-18 (1987).

Finally, the defendant argues that, because “other appellants similarly
situated are afforded oral argument,” denying her oral argument in this case
violates her rights to “due process, production of all proofs favorable, effective
assistance of counsel and equal protection, as guaranteed [her] by Part I,
Article 15 of the New Hampshire Constitution, as well as the 5th, 6th and 14th
Amendments to the United States Constitution.” Because the defendant
provides no developed argument or legal authority in support of her position,
we decline to address this issue. See State v. Durgin, 165 N.H. 725, 731 (2013)
(“off-hand invocations” of constitutional rights supported by neither argument
nor authority warrant no extended consideration).

Affirmed.

Dalianis, C.J., and Hicks, Lynn, Bassett, and Hantz Marconi, JJ.,
concurred.

Eileen Fox,
Clerk

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