State of New Hampshire v. Stephan Frosch

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0670, State of New Hampshire v. Stephan
Frosch, the court on March 18, 2024, issued the following order:

The court has reviewed the written arguments and record submitted on
appeal and has determined to resolve the case by way of this order. See Sup. Ct.
R. 20(2). Following a jury trial in Superior Court (Anderson, J.), the defendant,
Stephan Frosch, was convicted of first degree assault. RSA 631:1, I(a) (Supp.
2023). On appeal, he argues: (1) the trial court erred by allowing jurors who had
expressed concern regarding personal interactions with the defendant’s father
during the trial to continue as members of the jury without a curative
instruction; (2) the prosecutor’s questioning of witnesses during the State’s case
in chief regarding the defendant’s pre-arrest silence violated his right against self-
incrimination; and (3) the prosecutor’s presentation of evidence and argument
claiming that the defendant’s father has a history of violence violated the
defendant’s rights to due process and a fair trial. We affirm.

On December 3, 2020, a small group of friends met at the defendant’s
residence. Among those in attendance were the defendant and his father, the
victim, and H.Z. The defendant was in his early 20’s, while the victim was in his
50’s. At some point, H.Z. called 9-1-1 to report an assault upon the victim.
When the police arrived, she told them that she did not know why the defendant
had done what he did, that the defendant had been on top of the victim and “hit
him about a million times,” that the victim was not moving but that the
defendant “just kept hitting him,” and that if she had not shoved the defendant
off the victim, “then [the defendant] would have killed him.” The victim had
severe injuries to his face, spent five days in the intensive care unit and
underwent several reconstructive surgeries. The defendant testified, and claimed
that he acted in self-defense.

During the trial, the court conducted voir dire regarding concerns raised by
two jurors about the defendant’s father’s behavior. On appeal, the defendant
contends that the trial court failed to determine whether juror #4 could be fair
and impartial, and failed to issue a curative instruction regarding consideration
by the jury of the defendant’s father’s conduct. Because these issues were not
preserved for appellate review, the defendant argues that the trial court
committed plain error. See Sup. Ct. R. 16-A.

“The plain error rule allows us to consider errors that were not raised in
the trial court. We apply the rule sparingly, its use limited to those
circumstances in which a miscarriage of justice would otherwise result. To
reverse a trial court decision under the plain error rule: (1) there must be an
error; (2) the error must be plain; (3) the error must affect substantial rights; and
(4) the error must seriously affect the fairness, integrity or public reputation of
judicial proceedings.” State v. Ruiz, 170 N.H. 553, 566 (2018) (quotations
omitted).

After describing the father’s behavior of having waved to her in the court
parking lot, juror #4 confirmed that she had no concerns about her ability to be
fair and impartial, and that she would still give the defendant the presumption of
innocence. The trial court thereafter offered to instruct the jury not to consider
any reports they may have heard of some jurors having been made to feel
uncomfortable by an individual in the parking lot. The defendant declined the
offer so as to avoid “mak[ing] it any more of a bigger deal.” Although no
instruction was then given to the jury, at the end of the trial the jury was
instructed that it “must decide this case based solely on the evidence presented
at trial.” The court explained: “Now, during deliberations, you should consider
only the evidence presented at trial. The evidence consists of the testimony
under oath of the witnesses and exhibits that have been admitted into evidence.”

In light of juror #4’s statements regarding her ability to be fair and
impartial, we see no plain error in the trial court’s decision to permit her to
remain on the jury without the need for additional voir dire. Similarly, in light of
the defendant’s decision to decline the trial court’s offer of a jury instruction
coupled with the instructions given to the jury at the end of the trial, we again
see no plain error. Cf. State v. Rawnsley, 167 N.H. 8, 13 (2014) (cautioning
against transforming trial counsel’s strategic decisions into plain error at
appellate counsel’s urging).

We next consider the defendant’s evidentiary arguments. During the
State’s case in chief, Officer Giffin testified that the defendant did not make a
report claiming self-defense during the weeks that followed the assault. The
defendant did not object to this testimony. Thereafter, Sergeant Blake was asked
whether the defendant had claimed self-defense in the month before he was
arrested. The defendant objected, and the trial court sustained his objection.
The defendant then requested the court to instruct the jury as to “everybody’s
Constitutional right to remain silent.” The court agreed, and instructed the jury
that “[a]ll Defendants have a right to remain silent.” On appeal, the defendant
argues that the prosecutor “knowingly elicited testimony on two separate
occasions during the State’s case in chief related to the defendant’s pre-arrest
silence,” and that the trial court’s “curative instruction . . . failed to adequately
address this overstep by the prosecutor.”

We agree with the State that the defendant has failed to preserve these
issues for appellate review. The defendant failed to object to Officer Giffin’s

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testimony. When the defendant did object during Sergeant Blake’s testimony, his
objection was sustained, his request for a jury instruction was granted, and he
did not object to the instruction that was actually given. Accordingly, the
defendant has not preserved this issue for appellate review. See State v. Ruiz, 170 N.H. 553, 565 (2018) (contemporaneous and specific objection required to
preserve issue for appellate review).

To the extent that the defendant argues that the trial court committed
plain error, we disagree. As the defendant notes in his brief, we have indicated
that reference by a witness to a defendant’s silence may be remedied through the
issuance of a curative instruction. See State v. Reid, 161 N.H. 569, 576 (2011).
Here, the trial court instructed the jury that all defendants have a right to remain
silent. Even if we assume that the trial court’s failure either to sua sponte strike
testimony of Officer Giffin or to give a curative instruction other than the
instruction requested by the defendant constituted error, we are not persuaded
that any such error was plain.

The defendant next argues that the trial court erred by admitting evidence
that when he was being arrested, the defendant stated to the police: “This is
crazy. My dad has done what I did a million times and he has never been
arrested for it.” The defendant argues that this evidence constituted inadmissible
character evidence of the defendant’s father’s propensity for violence, was
“entirely irrelevant to any facts at issue in this case,” and was unfairly
prejudicial. The defendant also points to other evidence, to which he did not
object, that he contends constituted prejudicial evidence of his father’s
propensity for violence.

We need not decide whether the trial court erred with respect to any of this
evidence because we agree with the State that any error was harmless.

To establish harmless error, the State must prove beyond a
reasonable doubt that the error did not affect the verdict. This
standard applies to both the erroneous admission and exclusion of
evidence. We consider the alternative evidence presented at trial as
well as the character of the erroneously admitted evidence itself. To
determine whether the State has proven beyond a reasonable doubt
that an error did not affect the verdict, we must evaluate the totality
of the circumstances at trial.

The factors that we consider in assessing whether an error did
not affect the verdict include, but are not limited to: (1) the strength
of the State's case; (2) whether the admitted or excluded evidence is
cumulative or inconsequential in relation to the strength of the
State's case; (3) the frequency of the error; (4) the presence or
absence of evidence corroborating or contradicting the erroneously

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 admitted or excluded evidence; (5) the nature of the defense; (6) the
circumstances in which the evidence was introduced at trial; (7)
whether the court took any curative steps; (8) whether the evidence
is of an inflammatory nature; and (9) whether the other evidence of
the defendant's guilt is of an overwhelming nature. No one factor is
dispositive. We may consider factors not listed above, and not all
factors may be implicated in a given case.

State v. Rouleau, 176 N.H. ___, ___ (decided Jan. 19, 2024) (citations omitted).
The State’s case was strong — there was no dispute that the defendant hit the
victim; the question was whether the defendant acted reasonably in self-defense.1
The nature and extent of the victim’s injuries, combined with H.Z.’s statements
given the night of the incident, provided overwhelming evidence that the
defendant did not act reasonably in self-defense. In addition, the defendant’s
statement to the police — the statement to which the defendant objected at trial
— was not inflammatory, and consisted of a single statement that was
inconsequential in relation to the strength of the State’s case. We conclude
beyond a reasonable doubt that any error did not affect the verdict.

Finally, we note that the defendant argues that although he did not move
for a mistrial, the State’s closing argument was so prejudicial that it created an
irreparable injustice requiring a new trial. During the State’s closing argument,
the defendant objected three times. We agree with the State that to the extent
that any of the prosecutor’s word choices during his closing argument were
prejudicial to the defendant, that prejudice was cured when the prosecutor
clarified for the jury the points with which defense counsel took issue.

Affirmed.

MacDonald, C.J., and Bassett, Hantz Marconi, Donovan, and Countway,
JJ., concurred.

Timothy A. Gudas,
Clerk

1
The trial court instructed the jury, in part: “A person is only allowed to use that amount of
force he reasonably believes was necessary for self-defense. A person is not permitted to use
excessive force in self-defense, only a reasonable amount of force. The person can use the
amount of force which he believes is necessary under the circumstances, as long as, at the
time, there were reasonable grounds for his belief.” See State v. Etienne, 163 N.H. 57, 70
(2011).

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