Cited by

State v. Bruneau, 131 N.H. 104, 116-18 (1988); Evans, 150 N.H. at 422.

at 154-55; see also State v. Bruneau, 131 N.H. 104, 117-18 (1988).

12 Cf. Noucas, 165 N.H. at 156-57.6 Instead, the instruction would simply have provided the jury with necessary guidance “about the legal significance of claimed facts.” State v. Bruneau, 131 N.H. 104, 117-18 (1988).

Luce, 469 U.S. at 39-43; see also State v. Bruneau, 131 N.H. 104, 114-15 (1988).

Our case law distinguishes between what we have called a “theory of defense” and a “theory of the case.” A trial court must instruct a jury on a defendant’s “theory of defense,” but not on a “theory of the case.” See State v. Bruneau, 131 N.H. 104, 117-18 (1988).

e assistance of counsel is provided at critical stages of criminal proceedings in order to preserve a defendant’s right to a fair trial, Jeleniewski, 147 N.H. at 468; Maine v. Moulton, 474 U.S. 159, 170 (1985), and absent a waiver of this right by a defendant, any knowing government interrogation of a defendant after attachment, without the presence of counsel, is improper, see State v. Bruneau, 131 N.H. 104, 108 (1988); Moulton, 474 U.S. at 176.

The State characterizes such an argument as the defendant’s “theory of the case” rather than his “theory of defense,” and, citing State v. Bruneau, 131 N.H. 104 (1988), claims that the trial court was under no obligation to give an instruction covering such theory.

*91 A defendant’s right to assistance of counsel attaches “by virtue of the commencement of formal criminal proceedings,” State v. Bruneau, 131 N.H. 104, 108 (1988), and once the right has attached, a defendant is entitled to the assistance of counsel at “critical stages” of criminal proceedings, State v. Delisle, 137 N.H. 549, 550 (1993) (citation omitted).

State v. Torrence, 134 N.H. 24, 26-27 (1991) (instruction on significance of flight justified following testimony that defendant left jurisdiction following dismissal without prejudice of original indictment, and before being reindicted on same charge); see also State v. Bruneau, 131 N.H. 104, 117 (1988) (examples of fugitive behavior customarily thought to justify instruction on significance of flight include flight, escape from custody, resistance to arrest, concealment, assumption of false na

Accordingly, the defendant was not entitled to an instruction on a legitimate purpose defense under Demeritt.

We rejected a similar argument in State v. Bruneau, 131 N.H. 104, 116-18 (1988).

It appears in this case, however, that the defendant has mistakenly characterized his theory of the case as a theory of defense.

We noted in State v. Bruneau, 131 N.H. 104, 109 (1988), that two kinds of governmental action will meet this standard.

State v. Atkins, 145 N.H. 256, 257-58 (2000); State v. Bruneau, 131 N.H. 104, 115 (1988); State v. LaRose, 127 N.H. 146, 150 (1985); see also Luce v. U.S., 469 U.S. 38, 41-43 (1984).

Relying upon State v. Bruneau, 131 N.H. 104 (1988), the trial court found that Bennette’s affirmative act of deciding to report the information about the defendant to O’Neill and Shaps could reasonably be seen to have induced them to question and search the defendant.

“Only if the defendant had taken the stand and suffered impeachment by the statement’s use would an issue be ripe for adjudication here.” State v. Bruneau, 131 N.H. 104, 115 (1988).

State *78 v. Bruneau, 131 N.H. 104, 110, 552 A.2d 585, 589 (1988) (noting that third party was not police agent because he initiated contact with police, and police took no affirmative steps to enlist his help).

Although the record suggests that the trial court ultimately provided a conditional opinion on the admissibility of the assistant county attorney’s testimony, we endorse its initial refusal to “operate in a vacuum.” Because neither Ellis nor the assistant county attorney testified, “we find the claim of prejudicial error too speculative for adjudication.” State v. Bruneau, 131 N.H. 104, 115, 552 A.2d 585, 592 (1988); see also Luce v. United States, 469 U.S. 38, 41-42 (1984).

A defendant’s right to assistance of counsel attaches “by virtue of the commencement of formal criminal proceedings.” State v. Bruneau, 131 N.H. 104, 108, 552 A.2d 585, 587-88 (1988).

attache[s] by virtue of the commencement of formal criminal proceedings.” State v. Bruneau, 131 N.H. 104, 108, 552 A.2d 585, 587-88 (1988).

.” State v. Bruneau, 131 N.H. 104, 117, 552 A.2d 585, 594 (1988) (quoting State v. Guaraldi, 124 N.H. 93, 97, 467 A.2d 233, 235 (1983)).

State v. Bruneau, 131 N.H. 104, 108, 552 A.2d 585, 587-88 (1988); State v. Scarborough, 124 N.H. 363, 368-69, 470 A.2d 909, 913 (1983).

*248 In State v. Bruneau, 131 N.H. 104, 552 A.2d 585 (1988), we concluded that the existence of an agency relationship under part I, article 15 of the State Constitution requires proof of “some affirmative action by a police officer or other governmental official that preceded the interrogation and can reasonably be seen to have induced the third party to