State of New Hampshire v. Devin Irvine

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0415, State of New Hampshire v. Devin
Irvine, the court on May 26, 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, Devin Irvine, appeals his conviction of simple assault, see
RSA 631:2-a, I(a) (2016), arguing that the Superior Court (Ruoff, J.) erred in
preventing the jury from hearing a witness’s testimony that supported his
claim of self-defense.

The record shows that the State’s first witness, the defendant’s girlfriend
at the time of the crime, testified in a manner that diverged from her prior
statements regarding the defendant’s conduct on the night of the crime.
During a recess, the court appointed a lawyer for her, and she invoked her
Fifth Amendment privilege against self-incrimination as to any further
testimony relating to the events of that night. Consequently, the court struck
her testimony in its entirety.

The defendant first argues that the trial court erred by striking the
portion of the witness’s testimony that supported his self-defense claim. He
argues that because his right to present all proofs favorable was at stake, see
N.H. Const. pt. I, art. 15, the court should have exercised its discretion to
retain the portion of testimony that was relevant to that claim. However, the
witness invoked the privilege before the State had an opportunity to test the
truth of her testimony. When presented with competing constitutional
protections, the trial court must engage in “a delicate balancing, weighing the
conflicting interests of the parties involved.” State v. Donnelly, 145 N.H. 562,
566 (2000). Under these circumstances, we will not disturb the trial court’s
decision absent an unsustainable exercise of discretion. See id.; State v.
Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of
discretion standard).

“[T]he State has the right to question the witness, and to attempt to
impeach the witness’s testimony that conflicts with the State’s account of the
same events.” State v. Kuchman, 168 N.H. 779, 793 (2016) (quotation and
brackets omitted). When “the witness by invoking the privilege precludes
inquiry into the details of [her] direct testimony, there may be a substantial
danger of prejudice because the [opposing party] is deprived of the right to test
the truth of [her] direct testimony and, therefore, that witness’s testimony
should be stricken in whole or in part.” United States v. Nunez, 668 F.2d
1116, 1122 (10th Cir. 1981) (quotation omitted). In this case, the witness’s
invocation of the privilege precluded the State from questioning her regarding
the details of her testimony. The unchallenged testimony related directly to the
assault charge for which the defendant was convicted. Based upon this record,
we cannot conclude that the trial court unsustainably exercised its discretion
by striking the witness’s testimony in its entirety. See Donnelly, 145 N.H. at
566.

The defendant next argues that the trial court erred in finding that the
witness properly invoked her Fifth Amendment privilege in response to the
defendant’s questions relevant to his self-defense claim. “Whether a witness’
claim of the privilege is justified is a decision which rests within the trial
court’s exercise of sound discretion.” DeMauro v. DeMauro, 142 N.H. 879, 883
(1998) (brackets and quotation omitted). The defendant argues that the four
questions his counsel asked the witness to answer at the Richards hearing, see
State v. Richards, 129 N.H. 669 (1987), did not have a tendency to subject her
to prosecution because of their limited scope. However, “the privilege against
self-incrimination applies not only to answers which would support a
conviction, but also to those which would furnish a link in the chain of
evidence needed to prosecute someone who claims the privilege.” State v.
Avery, 126 N.H. 208, 212 (1985) (brackets and quotation omitted). The
questions related to the witness’s presence at the crime scene, her observations
of the physical contact between the defendant and the victim, and the nature of
the disagreement that led to the fighting. Based upon this record, we conclude
that the witness’s responses to the defendant’s questions, and the State’s likely
cross-examination, would have had a tendency to incriminate her.
Accordingly, we cannot conclude that the trial court unsustainably exercised
its discretion in finding that the witness properly invoked the privilege. See
DeMauro, 142 N.H. at 883.

The defendant next argues that the trial court erred in striking the
witness’s testimony because the State could have exercised its power to grant
the witness use immunity, and the court could have compelled her to testify.
See RSA 516:34 (2007) (compelling evidence in criminal proceedings).
However, the record shows that the State chose not to immunize the witness in
part because of its concern that the immunity statute would not protect her
from perjury. The defendant does not argue that due process compelled the
State to immunize the witness. See State v. Blackmer, 149 N.H. 47, 49 (2003)
(we confine our review to issues that the defendant has fully briefed).
Accordingly, we find no error resulting from the State’s decision not to
immunize the witness.

Finally, the defendant argues that the trial court erred in finding that the
witness had not waived her Fifth Amendment privilege by giving direct

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testimony regarding the circumstances of the crime. A court should only infer
a waiver of the privilege from a witness’s testimony if the jury would be left with
a “distorted view of the truth,” and the witness had reason to know that the
testimony would be interpreted as a waiver. Klein v. Harris, 667 F.2d 274, 287
(2d Cir. 1981). In this case, the extent to which the witness’s testimony
directly conflicted with her prior statements remained unclear at the time she
invoked the privilege. The record fails to show that she had reason to know
that her testimony would be interpreted as a waiver. Accordingly, we cannot
conclude that the court erred. See id.

Affirmed.

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

Eileen Fox,
Clerk

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