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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough–northern judicial district
No. 2015-0155


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                             DOMINICK STANIN, SR.

                           Argued: February 10, 2016
                          Opinion Issued: July 12, 2016

      Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney
general, on the brief and orally), for the State.


      Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

       CONBOY, J. The defendant, Dominick Stanin, Sr., appeals the decision
of the Superior Court (Abramson, J.) to impose his two previously suspended
sentences. On appeal, he argues that the trial court erred by denying his
pretrial motion in limine seeking to limit the State’s cross-examination of him
or, alternatively, to “sever” the bases for the motion to impose. We affirm.

      The relevant facts follow. In April 2014, the defendant was convicted of
two counts of reckless conduct, see RSA 631:3 (2007) (amended 2014), and one
count of being a felon in possession of a dangerous weapon, see RSA 159:3
(2014). On one of the reckless conduct charges, he received a time-served
sentence. On the two remaining charges, he received consecutive three-and-
one-half-to-seven-year sentences, both suspended for 10 years on the condition
of good behavior.

      In June 2014, the defendant was arrested for loitering (a violation-level
offense), see RSA 644:6 (2007), and resisting arrest (a misdemeanor), see RSA
642:2 (Supp. 2015). Those charges were tried in September 2014. The trial
court acquitted the defendant of the loitering charge and placed the resisting
arrest matter “on file without a finding.”

       In August 2014, the defendant was charged with first degree assault, see
RSA 631:1 (2007) (amended 2014), robbery, see RSA 636:1 (2007), and being a
felon in possession of a dangerous weapon, see RSA 159:3, for his involvement
in a stabbing incident. He was subsequently also charged with misdemeanor
resisting arrest in connection with the August incident. See RSA 642:2.

       In October 2014, the State moved to impose the defendant’s two
consecutive three-and-one-half-to-seven-year sentences on the ground that his
June and August charges established that he had violated the condition of
good behavior. The defendant filed a pretrial motion in limine seeking to limit
the State’s cross-examination of him or, alternatively, to sever the bases for the
motion to impose. In that motion, the defendant explained that he “might
testify” as to the June resisting arrest charge, but, as to the August charges he
wanted to invoke his right to remain silent pursuant to the 5th and 14th
Amendments to the United States Constitution and the rights to all proofs
favorable and against self-incrimination provided in Part I, Article 15 of the
New Hampshire Constitution. During the February 2015 hearing on the
motion to impose, the trial court ruled that the defendant could not “testify
selectively; . . . if he takes the stand, he waives his Fifth Amendment privilege
in a motion to impose hearing.” The defendant did not testify at the hearing.
Nor did he put on an affirmative case.

       The trial court found that the State had met its burden of proving, by a
preponderance of the evidence, that the defendant had violated the condition of
good behavior. Specifically, the court found, by a preponderance of the
evidence, that the June resisting arrest charge, the August felon-in-possession
charge, and the August first degree assault charge were true. The court also
found that the State had failed to meet its burden of proof with respect to the
August robbery charge and August resisting arrest charge. Because the court
found that the defendant had violated the condition of good behavior, it
imposed his two previously suspended sentences. On the April reckless
conduct charge, the court imposed the entire previously suspended sentence
(three and one-half years to seven years). As for the April felon-in-possession
charge, the court imposed the suspended term of three-and-one-half to seven



                                        2
years, but further suspended the three-and-one-half years minimum term for
one and one-half years. This appeal followed.

       On appeal, the defendant argues that the privilege against compelled
self-incrimination, as guaranteed by the State and Federal Constitutions, see
N.H. CONST. pt. I, art. 15; U.S. CONST. amend. V, required the trial court to
limit the State’s cross-examination to the subject about which he intended to
testify during direct examination (the June resisting arrest charge). See N.H.
R. Ev. 611(b) (providing that a cross-examiner may question a witness “on any
matter relevant to any issue in the case, including credibility,” but “[i]n the
interests of justice, the judge may limit cross-examination with respect to
matters not testified to on direct examination”). The defendant contends that
the trial court should have ruled that he waived his privilege against compelled
self-incrimination only as to the June resisting arrest charge and to matters
affecting his credibility. Thus, the defendant asserts that the trial court
violated the privilege when it ruled in limine that the State could cross-examine
him about the August charges even though he intended to testify on direct
examination about only the June resisting arrest charge.

       Relying upon Luce v. United States, 469 U.S. 38 (1984), and its progeny,
the State argues that the defendant’s decision not to testify at the motion to
impose hearing renders unreviewable his argument that the trial court erred by
failing to restrict the scope of the State’s cross-examination. See Luce, 469
U.S. at 39-43; see also State v. Bruneau, 131 N.H. 104, 114-15 (1988). The
petitioner in Luce was charged with conspiracy and possession of cocaine with
intent to distribute. Luce, 469 U.S. at 39. He moved to preclude the
government from using a prior state conviction for possession of a controlled
substance to impeach him if he testified. Id. The petitioner did not commit to
testifying if the motion were granted and gave no proffer as to what his
testimony would be. Id. The trial court determined that the prior conviction
was admissible for impeachment purposes under Federal Rule of Evidence
609(a). Id. at 39-40. The trial court did state, however, that if the “petitioner
limited his testimony to explaining his attempt to flee from arresting officers,”
the prior conviction would be excluded. Id. at 40. The petitioner did not
testify. Id.

        The Supreme Court ruled that, because the petitioner never testified, his
argument that the trial court erred by ruling the prior conviction admissible for
impeachment was unreviewable. See id. at 43. The Court explained that,
without the defendant’s trial testimony, “[a]ny possible harm flowing from a
[trial] court’s in limine ruling permitting impeachment by a prior conviction is
wholly speculative” because a trial court may change its ruling as the case
unfolds and because a defendant’s actual testimony may differ from that which
was contained in his proffer. Id. at 41. Moreover, “[w]hen the defendant does
not testify, the reviewing court . . . has no way of knowing whether the



                                        3
Government would have sought to impeach with the prior conviction.” Id. at
42. The Court also explained:

      Were in limine rulings under Rule 609(a) reviewable on appeal,
      almost any error would result in the windfall of automatic reversal;
      the appellate court could not logically term “harmless” an error
      that presumptively kept the defendant from testifying. Requiring
      that a defendant testify in order to preserve Rule 609(a) claims will
      enable the reviewing court to determine the impact any erroneous
      impeachment may have had in light of the record as a whole; it will
      also tend to discourage making such motions solely to “plant”
      reversible error in the event of conviction.

Id.

       Although Luce concerned impeachment under Federal Rule of Evidence
609(a), when we adopted Luce, we applied it to a constitutionally-based claim.
See Bruneau, 131 N.H. at 114-15. In Bruneau, the defendant had filed a
pretrial motion to suppress a statement that the State conceded had been
obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Id. at 114.
The trial court ruled that the statement was inadmissible in the State’s case-in-
chief, but was admissible to impeach the defendant, if he took the stand. Id.
On appeal, the defendant argued that the trial court’s decision violated his
right to counsel as guaranteed by Part I, Article 15 of the State Constitution
and the Sixth Amendment to the Federal Constitution. Id. We found the
defendant’s appellate argument to be “too speculative for adjudication” because
he “never testified and was never impeached.” Id. at 115. We explained:

      We have no way of knowing whether [the defendant’s] decision to
      remain off the stand was influenced to any degree by the ruling in
      limine, any more than we can tell what would have happened if he
      had testified. We do not know whether his testimony would have
      differed from the substance of his statement, or whether the State
      would actually have used the statement to impeach him.

Id.

       Relying, in part, on Luce, we held that “[o]nly if the defendant had taken
the stand and suffered impeachment by the statement’s use would an issue be
ripe for adjudication here.” Id.; accord State v. Croft, 142 N.H. 76, 78-79
(1997) (ruling that the defendant’s arguments regarding the admissibility of a
prosecutor’s testimony were not preserved because the trial court “never ruled
in the context of actual testimony” and finding that “[t]he specificity of the
offers of proof is irrelevant” because trial testimony can differ from proffers).
But cf. State v. Blackstock, 147 N.H. 791, 797 (2002) (ruling that the defendant
could challenge the trial court’s in limine ruling on appeal where he supported


                                        4
his motion “with an explanation of the line of questioning he sought to pursue
during cross-examination” and renewed his request at trial).

       Other state courts have also applied Luce to impeachment by a
statement obtained in violation of a defendant’s Miranda rights. See, e.g.,
Wagner v. State, 347 P.3d 109, 109-10 (Alaska 2015) (declining to review the
defendant’s claim that the trial court erred by allowing the State to impeach
him with a statement obtained in violation of Miranda because, without his
testimony, “it is impossible to tell whether the court’s ruling affected [his]
decision not to testify, whether the prosecution would have impeached him
with his police statement, or whether this evidence would have affected the
jury”); Jordan v. State, 591 A.2d 875, 876-78 (Md. 1991) (concluding that the
appellate court could not review the defendant’s constitutional argument that
the trial court erred by allowing the State to use his allegedly involuntary
confession to impeach him because he elected not to testify); cf. People v. Boyd,
682 N.W.2d 459, 459-60 (Mich. 2004) (ruling that the defendant had to testify
at trial to preserve for review his challenge to the trial court’s in limine ruling
that allowed into evidence his post-arrest silence). But see, e.g., State v.
Brunelle, 534 A.2d 198, 199-200, 204 (Vt. 1987) (ruling that the defendant
could challenge on appeal the trial court’s decision allowing the State to
impeach him with evidence that had been obtained in violation of his Miranda
rights, even though he neither testified nor made an offer of proof at trial); cf.
State v. Cherry, 83 P.3d 123, 125-26 (Idaho Ct. App. 2003) (concluding that
when a defendant elects not to testify, but has made an adequate offer of proof
as to the testimony he would have given, he may challenge on appeal the trial
court’s decision to allow impeachment with evidence allegedly obtained in
violation of his constitutional rights).

       We have not previously applied the Luce rule to circumstances similar to
those in this case. Thus, whether the defendant’s decision not to testify
renders unreviewable his argument that the trial court erred by failing to
restrict the State’s proposed cross-examination to the subject about which he
intended to testify is a question of first impression. However, numerous federal
jurisdictions have applied the Luce rule to similar arguments. See United
States v. Ferrer, 441 Fed. Appx. 867, 869 (3d Cir. 2011) (determining that the
defendant’s decision not to testify at trial precluded the appellate court from
reviewing his argument that the trial court should not have denied his motion
in limine to restrict the scope of the government’s cross-examination of him);
United States v. Bond, 87 F.3d 695, 700-01 (5th Cir. 1996) (finding
unreviewable the defendant’s argument that the trial court erroneously decided
that if he testified “regarding the terms of his plea bargain, he would waive his
privilege against self-incrimination with regard to all grounds asserted in his
motion to withdraw” his plea, because he did not testify); United States v.
Johnson, Nos. 94-5088, 94-5099, 1995 WL 530088, at *4-5 (4th Cir. Aug. 31,
1995) (unpublished) (ruling that, by choosing not to testify, the defendant failed
to preserve for the court’s review whether the trial court violated his


                                         5
constitutional privilege against compelled self-incrimination when it ruled that,
if he testified for a limited purpose at sentencing, the government could cross-
examine him about “everything” (quotation omitted)); United States v. Nivica,
887 F.2d 1110, 1115-17 (1st Cir. 1989) (concluding that the defendant’s
argument that the trial court erred when it denied his request for a pretrial
ruling that would have limited the government to cross-examining him only
upon matters about which he testified on direct examination and about his
credibility was foreclosed because he never, in fact, testified); cf. United States
v. Wilson, 307 F.3d 596, 598-601 (7th Cir. 2002) (holding unreviewable the
defendant’s assertion that his Fifth Amendment right to remain silent was
violated by the trial court’s conditional ruling to allow the government to
introduce evidence of his “selective silence” if he referred to the “associate” he
had originally mentioned to a federal agent because, although the defendant
testified, he did not, in fact, mention the associate (quotation omitted)).

        Moreover, at least two state courts have also applied Luce to
circumstances that are similar to those in this case. See Jackson v. State, 992
S.W.2d 469, 479-80 (Tex. Crim. App. 1999) (en banc) (declining to review the
appellant’s assertion that the trial court erred when it ruled that the State
could cross-examine him about certain offenses if he testified in the
punishment phase of his trial for the limited purpose of raising mitigation
issues because he did not testify); People v. Whitehead, 508 N.E.2d 687, 693-
94 (Ill. 1987) (ruling that because neither the witness nor the defendant
testified, the court could not review whether the trial court erred by denying
the defendant’s motions in limine seeking to limit the State’s cross-
examination).

      We find persuasive the court’s reasoning in United States v. Turner, 674
F.3d 420 (5th Cir. 2012). The defendant in that case brought a motion in
limine requesting that the federal district court rule upon whether his
testimony about his federal charges “would waive his Fifth Amendment right
against self-incrimination as to” a robbery “for which he faced only state
charges.” Turner, 674 F.3d at 433. The district court ruled that, if the
defendant testified about the federal charges, he could be cross-examined
about the state robbery charges because his testimony about those charges
would be relevant to, and probative of, his credibility and his “intent, identity,
motive, plan, knowledge, and modus operandi.” Id. (quotation and brackets
omitted). The defendant did not testify. Id. Although the defendant argued
that the district court’s ruling was erroneous, the appellate court concluded
that his failure to testify rendered his argument unreviewable. Id. at 433-34.
The court explained that “without any record of what [the defendant] would
have said, [it] cannot review the relevance and appropriateness of a
hypothetical cross-examination on a particular subject.” Id. at 434.

      The defendant argues that Turner is distinguishable because the
defendant in that case “wanted[ ] to give testimony only on some discrete


                                         6
matters bearing on a given charge,” whereas the defendant in this case sought
“to give testimony on any and all matters bearing” on the June resisting arrest
charge. The defendant’s characterization of Turner is mistaken. The defendant
in Turner sought to testify about one set of charges without being cross-
examined about another set of charges. Id. at 433. Similarly, in this case, the
defendant sought to testify about the June resisting arrest charge without
being cross-examined about the August charges. The court in Turner ruled
that if the defendant testified about one set of charges, he would waive his
privilege against compelled self-incrimination as to the other charges. See id.
Likewise, the court here ruled that if the defendant testified about the June
resisting arrest charge, he would waive his privilege against compelled self-
incrimination as to the August charges.

       Here, the defendant did not testify. Moreover, even if we assume that a
detailed proffer as to the defendant’s intended testimony would have sufficed,
the defendant did not make such a proffer. See Blackstock, 147 N.H. at 797.
But see Bruneau, 131 N.H. at 115; Croft, 142 N.H. at 78-79. We hold that this
record renders unreviewable the defendant’s argument that the trial court
violated his privilege against compelled self-incrimination as protected by the
State and Federal Constitutions when it failed to restrict the State’s cross-
examination to the subject about which he intended to testify. Absent a record
of what the defendant would have said during direct examination and of the
State’s proposed cross-examination of him, we cannot meaningfully determine
whether the trial court’s failure to restrict the scope of the State’s cross-
examination was unconstitutional. Meaningful review is impossible in this
case because the defendant’s precise testimony and the State’s anticipated
cross-examination remain “unknowable.” Luce, 469 U.S. at 41.

       Alternatively, the defendant argues that the trial court “erred in denying
the alternative relief of severance of the June charge from the August charges.”
He asserts that, pursuant to former Superior Court Rule 97-A (superseded by
New Hampshire Rule of Criminal Procedure 20), he had a “right” to severance
of the two bases for the motion to impose (the June resisting arrest charge and
the August charges) because the June charge was not “related” to the August
charges and severance was in the “interests of justice.”

      The defendant’s reliance upon the rule regarding severance of criminal
offenses for trial is misplaced. The alleged June and August acts were not
“offenses” for which the defendant was to be tried. Rather, they constituted the
State’s evidence that he had violated the good-behavior condition of his
previously suspended sentences, regardless of whether those acts resulted in
criminal convictions. See State v. Gibbs, 157 N.H. 538, 540-42 (2008). Under
these circumstances, Superior Court Rule 97-A is of no avail to the defendant.

       In effect, the defendant asserts that the “interests of justice” required the
trial court to treat the State’s motion to impose as if it were two motions — one


                                         7
motion based upon the June resisting arrest charge and the other based upon
the August charges. However, “[t]he trial court has broad discretion in
managing the proceedings before it.” State v. Larose, 157 N.H. 28, 39 (2008)
(quotation omitted). Given the State’s allegation that, as a result of the
defendant’s conduct in June and August, he “was not on good behavior,” we
cannot say that the trial court unsustainably exercised its discretion by
declining to treat the State’s motion to impose as two motions and by declining
to hear them in separate hearings. See State v. Lambert, 147 N.H. 295, 296
(2001) (explaining our unsustainable exercise of discretion standard of review).

                                                 Affirmed.

      DALIANIS, C.J., and LYNN and BASSETT, JJ., concurred.




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