Cited by

57, 361 (1999) (holding that a mistrial was warranted after a witness testified that the defendant had sexually assaulted another individual); State v. Woodbury, 124 N.H. 218, 221 (1983) (holding that a mistrial was warranted when the testimony “explicitly revealed to the jury inadmissible evidence of an identical charge which had been previously filed against the defendant”); State v. LaBranche, 118 N.H. 176, 179 (1978) (holding that testimony relating to a pending AFSA charge warranted a new t

at 361 (holding that “statement that ‘that man raped some girl’ was highly prejudicial and warranted a mistrial”); State v. Woodbury, 124 N.H. 218, 221 (1983) (holding that a mistrial was warranted where the testimony “explicitly revealed to the jury inadmissible evidence of an identical charge which had been previously filed against the defendant”); State v. LaBranche, 118 N.H. 176, 179 4 (1978) (holding that testimony relating to a pending AFSA charge warranted a new trial when “the jury could

at 590; see, e.g., State v. Kerwin, 144 N.H. 357, 360-61 (1999) (holding that alleged sexual assault victim’s statement that “that man raped some girl” warranted mistrial because statement “unambiguously conveyed to the jury the fact that the defendant allegedly had engaged in similar culpable conduct”); State v. LaBranche, 118 N.H. 176, 177 (1978) (holding that witnesses’ testimony about defendant’s pending charge of attempted aggravated felonious sexual assault during trial on separate charge

rt’s offer to give a limiting instruction, “he cannot claim that he was prejudiced by the court’s failure to do so.” Because the “procedure” about which the court allowed Trask to testify included the fact that Trask was told that the buy money was found on the defendant, this is one of those rare cases in which a curative instruction, even if it had been given, would not have cured the prejudice.

Similarly, in State v. LaBranche, 118 N.H. 176, 177 (1978), we held that a mistrial was required where witnesses testified about a charge that had previously been filed against the defendant arising out of another instance of criminal conduct similar to the charge before the jury.

State v. Woodbury, 124 N.H. 218, 221 (1983) (granting a motion for mistrial due to police testimony that the defendant had been previously charged with a crime that was identical to the one for which he stood trial); State v. LaBranche, 118 N.H. 176, 178-79 (1978) (granting a motion for mistrial due to testimony from two witnesses that the defendant was allegedly culpable for other instances of criminal conduct closely related to the charge for which he stood trial).

State v. LaBranche, 118 N.H. 176, 179 (1978) (“The fact that defense counsel raised the objection and requested a mistrial in each instance after a-few additional questions and answers had ensued is of no consequence.” (emphasis added)).

Compare State v. LaBranche, 118 N.H. 176, 177 (1978) (holding that repeated testimony about a second incident of attempted sexual assault that was the basis of a properly severed indictment was inadmissible and sufficiently prejudicial to require a new trial), with Ellison, 135 N.H. at 6 (holding that a mistrial was not required in an assault case where inad

For instance, we have approved joining related charges of child sexual abuse because the evidence of each was brief, simple and unlikely to confuse the jury, see State v. Hennessey, 142 N.H. 149, 154-55 (1997), and also have approved severing them because of the “high potential for prejudice” in joining these types of charges, see State v. LaBranche, 118 N.H. 176, 177-79 (1978).

Similarly, in State v. LaBranche, 118 N.H. 176 (1978), a mistrial was required after several witnesses obliquely referenced a second but untried indictment for a similar offense.

Although the trial court twice offered to give a limiting instruction, we conclude that a limiting instruction would not have cured the prejudicial effect of the testimony, but rather would have emphasized the prejudice.

When such highly prejudicial evidence is improperly admitted, cf. State v. Whittaker, 138 N.H. 524, 526, 642 A.2d 936, 938 (1994) (discussing when prior bad acts may be admissible), curative instructions are usually ineffective to remedy the error and “serve[] only to emphasize the prejudice,” State v. LaBranche, 118 N.H. 176, 179-80, 385 A.2d 108, 110 (1978).

Guided by these principles, we have held issues preserved when a slight delay in a litigant’s objection nonetheless afforded the trial court with ample opportunity to correct the alleged error, see State v. Cooper, 135 N.H. 258, 260, 603 A.2d 499, 500-01 (1992); State v. LaBranche, 118 N.H. 176, 179, 385 A.2d 108, 110 (1978), and when the trial court understood and therefore addressed the substance of a relatively vague objection, see State v. King, 136 N.H. 674, 677, 621 A.2d 921, 922 (1993); S

See, e.g., State v. Woodbury, 124 N.H. 218, 469 A.2d 1302 (1983); State v. LaBranche, 118 N.H. 176, 385 A.2d 108 (1978).

State v. Woodbury, 124 N.H. 218, 221-22, 469 A.2d 1302, 1304-05 (1983) (mistrial required when jury exposed to inadmissible evidence of an identical charge previously filed against the defendant); State v. LaBranche, 118 N.H. 176, 179, 385 A.2d 108, 110 (1978) (mistrial required when jury exposed to inadmissible testimony concerning a pending, untried indictment and “could easily discern that the defendant was allegedly culpable for other instances of criminal conduct closely related to the char

Ellison, 135 N.H. at 4, 599 A.2d at 479 (prejudice inherent in evidence of other similar crimes); State v. Woodbury, 124 N.H. 218, 220, 469 A.2d 1302, 1304-05 (1983) (testimony explicitly revealed evidence of identical crime); State v. LaBranch, 118 N.H. 176, 179, 385 A.2d 108, 110 (1978) (evidence of closely related charge); cf. Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.

Moreover, the trial court’s concise statement to the jury accomplished this without unduly highlighting the objectionable testimony.

CONDUCT 3.4(e), and where a witness alluded to criminal conduct of the defendant similar to the conduct charged, see State v. Woodbury, 124 N.H. 218, 221, 469 A.2d 1302, 1305 (1983) (curative instructions held insuf *17 fieient); State v. LaBranche, 118 N.H. 176, 179, 385 A.2d 108, 110 (1978) (curative instructions, had they been given, would have been insufficient).

See, e.g., State v. Bujnowski, 130 N.H. 1, 532 A.2d 1385 (1987) (prosecutor professed to jury his personal opinion of the guilt of the defendant); State v. Preston, 121 N.H. 147, 427 A.2d 21 (1981) (prosecutor argued to jury facts not in evidence); State v. LaBranche, 118 N.H. 176, 385 A.2d 108 (1978) (State testified about untried indictment pending against defendant).

The defendant argues that the prosecutor’s question to Rodden on cross-examination is comparable to the introduction of inadmissible evidence in State v. Woodbury, 124 N.H. 218, 469 A.2d 1302 (1983), and State v. LaBranche, 118 N.H. 176, 385 A.2d 108 (1978), which required us to hold that a mistrial was the only appropriate remedy.

State v. Woodbury, 124 N.H. 218, 220, 469 A.2d 1302, 1304 (1983); State v. LaBranche, 118 N.H. 176, 178, 385 A.2d 108, 109 (1978).

Timely objections allow the trial court to remedy errors that may *462 have been made.

He relies on State v. LaBranche, 118 N.H. 176, 385 A.2d 108 (1978) to support his contention that “there is a reasonable doubt as to whether or not the jury may have relied on this clearly inadmissible evidence in reaching its verdicts and that he has thus been prejudiced by his counsel’s failure to raise the issue at trial.” The defendant’s reliance is misplace

State v. Woodbury, 124 N.H. 218, 469 A.2d 1302 (1983); see also State v. LaBranche, 118 N.H. 176, 385 A.2d 108 (1978).

Contemporaneous objections are required so *308 that the trial court has an opportunity to consider whether to take remedial action.

If the trial judge finds, beyond a reasonable doubt, that the diary or its contents could not have affected the verdict in the previous trial, then the error which we have found is harmless and the verdict shall stand.

The defendant’s final argument is that the trial court should have excluded evidence pertaining to the murder of Gary Russell, because the defendant was being tried only for the murder of Lee Ann Greeley, and because evidence of other crimes is not admissible to show a propensity for crime.

It would be virtually impossible to determine the degree to which the jury may have been influenced by the prosecutor’s comment.

State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976); see State v. LaBranche, 118 N.H. 176, 179, 385 A.2d 108, 110 (1978).

In considering the court’s ruling we begin by agreeing that a reference to an association between the defendant and an armed robbery unrelated to the charge in question would have been prejudicial and of no apparent probative value when standing alone.

State v. Woodbury, supra at 221, 469 A.2d at 1304-05; State v. LaBranche, 118 N.H. 176, 179-80, 385 A.2d 108, 110 (1978).

Assuming that the motion for a mistrial was timely, see State v. LaBranche, 118 N.H. 176, 179, 385 A.2d 108, 110 (1978), we cannot say that the superior court erred in denying the motion.

When irrelevant evidence is improperly admitted, the critical question is “whether it can be said beyond a reasonable doubt that the inadmissible evidence did not affect the verdict.” State v. LaBranche, 118 N.H. 176, 179, 385 A.2d 108, 110 (1978) (quoting State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976)).

The basis for this exclusion is the recognized “potentiality for prejudice” of such evidence, coupled with the “fear that the generality of [a] jury’s verdict might mask a finding of guilt based on an accused’s past or alleged criminal acts.” State v. LaBranche, 118 N.H. 176, 178, 385 A.2d 108, 109 (1978).

State v. Welch, 120 N.H. at 688, 421 A.2d at 142-43; State v. LaBranche, 118 N.H. 176, 179-80, 385 A.2d 108, 110 (1978).

State v. LaBranche, 118 N.H. 176, 179, 385 A.2d 108, 110 (1978) (quoting State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976)).

In this State the test for determining in a criminal case whether error can be harmless is “whether it can be said beyond a reasonable doubt that the inadmissible evidence did not affect the verdict.” State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976); State v. LaBranche, 118 N.H. 176, 179, 385 A.2d 108, 110 (1978).

The New Hampshire procedural requirement as to contemporaneous objection and exception is grounded on judicial economy and common sense.

Evidence of a prior offense may be admissible when introduced as “an element in the crime,” State v. Labranche, 118 N.H. 176, 178, 385 A.2d 108, 109 (1978); see Spencer v. Texas, 385 U.S. 554 (1967).

While in some instances “counsel may refrain from interrupting testimony and raising an immediate objection to avoid accentuating the potential problem,” an objection must be made “when the court has ample time to take remedial action if an error has occurred.” State v. LaBranche, 118 N.H. 176, 179, 385 A.2d 108, 110 (1978).

State v. Labranche, 118 N.H. 176, 179, 385 A.2d 108, 110 (1978); State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976); accord, Fahy v. Connecticut, 375 U.S. 85, 86—87 (1963).

State v. Labranehe, 118 N.H. 176, 385 A.2d 108 (1978); cf. Wainwright v. Sykes, 433 U.S. 72 (1977).