State v. Kuchman
| Decision Date | 19 April 2016 |
| Docket Number | No. 2014-0631,2014-0631 |
| Parties | The STATE of New Hampshire v. Joseph KUCHMAN |
| Court | New Hampshire Supreme Court |
168 N.H. 779
138 A.3d 1264
The STATE of New Hampshire
v.
Joseph KUCHMAN
No. 2014-0631
Supreme Court of New Hampshire.
Argued: November 12, 2015
Opinion Issued: April 19, 2016
Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
Mirhashem Law Office, PLLC, of Manchester (Behzad Mirhashem on the brief and orally), for the defendant.
BASSETT, J.
The defendant, Joseph Kuchman, appeals decisions of the Superior Court (Lewis and Brown, JJ.) related to his conviction by a jury on one count of first degree assault. See RSA 631:1, I (2007). The defendant
argues that the trial court erred when it denied his request for a bill of particulars, denied his multiple motions for a mistrial, and admitted evidence of a telephone conversation. For the reasons that follow, we affirm.
The jury could have found the following facts. On January 19, 2011, the victim was working at a bar in Rochester. At approximately midnight, the defendant and his friend, Joshua Texeira, entered the bar. While there, the defendant and Texeira became loud. The victim and the bartender repeatedly asked them to be quiet, but they did not do so. Following an argument with the victim and the manager of the bar, the defendant and Texeira were escorted outside, where the defendant threatened the victim and stated that he was going to come back for him. Eventually, the defendant and Texeira walked away.
A few minutes later, the victim went out of the back door of the bar to take out the trash and to smoke. The victim saw the defendant and Texeira standing near one of the dumpsters, and asked "if they had lost something." Neither responded, but both the defendant and Texeira approached the victim. Texeira then took out an expandable baton that had been in his truck, and hit the victim with it. The victim fell down, and was kicked several times. The victim testified that, during the attack, the defendant asked him if he "was a tough guy now."
Once the attack stopped, the victim went back inside the bar, and several people ran outside and chased Texeira and the defendant to Texeira's truck. The police and paramedics eventually arrived at the scene, and the victim was transported to the hospital. The victim suffered multiple severe injuries. The victim later identified, by way of photographic lineups, both the defendant and Texeira as his attackers.
A grand jury issued one indictment against the defendant alleging two counts of first degree assault. See RSA 631:1, I. Each count alleged that the defendant, acting "in concert with Joshua Texeira," caused bodily injury to the victim. The defendant was also charged by information with two counts of simple assault. See RSA 631:2–a (2007). One of the simple assault charges was nolle prossed prior to trial. After the State rested at trial, the trial court dismissed one of the first degree assault counts. The jury acquitted the defendant of the remaining simple assault charge, but found him guilty of the remaining first degree assault count. This appeal followed.
I. Bill of Particulars
On appeal, the defendant first argues that the trial court erred when it denied
his motion for a bill of particulars, in which he argued that the first degree assault indictment did not provide him with information concerning his alleged criminal acts sufficient to permit him to properly prepare for
trial. The first count, which was ultimately dismissed by the trial court, alleged that the defendant "in concert with Joshua Texeira, purposely cause[d] serious bodily injury to [the victim] by striking him in the face with a baton or blunt object, fracturing [the victim's] nose." The second count alleged that the defendant, acting "in concert with Joshua Texeira, knowingly cause[d] bodily injury to [the victim] by means of a deadly weapon by striking him in the head and body with a baton or blunt object, fracturing [the victim's] nose and causing lacerations to his scalp and face."
The State filed an objection to the defendant's motion, arguing that the indictment was "more than sufficient for the defendant to prepare his defense as it puts him on notice that the State has to prove that he in some way solicited, aided, agreed or attempted to aid in the First Degree Assault of [the victim]." The trial court denied the defendant's motion.
On appeal, the defendant argues that the trial court erred when it denied his motion for a bill of particulars because the indictment charging him with acting "in concert with" Texeira implicated numerous theories of liability, and, therefore, he did not know which theory of liability that the State would rely upon at trial. According to the defendant, he was prejudiced and unable to prepare an intelligent defense because "[e]ven as he was about to deliver his closing argument," he "still did not know what theory of ... liability would be relied upon by the State." The defendant also asserts that, because the State proceeded against him solely as an accomplice, rather than as both an accomplice and a principal, we should subject the indictment to more stringent review.
Part I, Article 15 of the New Hampshire Constitution "requires that an indictment describe the offense with sufficient specificity to ensure that the defendant can prepare for trial and avoid double jeopardy." State v. Woodard, 146 N.H. 221, 227, 769 A.2d 379 (2001) (quotation omitted). "An indictment generally is sufficient if it recites the language of the relevant statute; it need not specify the means by which the crime was accomplished or other facts that are not essential to the elements of the crime." State v. Carr, 167 N.H. 264, 269, 110 A.3d 829 (2015) (quotation omitted).
A "bill of particulars is, in this State, a tool for clarifying an inadequate indictment or complaint." State v. Sanborn, 168 N.H. 400, 415, 130 A.3d 563, 577 (2015) (quotation omitted); see State v. Kelly, 160 N.H. 190, 196, 999 A.2d 303 (2010) (noting that "it may be good practice to ask for a bill of particulars if a defendant is unsure of the specific acts alleged"). "The purpose of a bill of particulars is to protect a defendant against a second prosecution for an inadequately described offense and to enable him to prepare an intelligent defense." Sanborn, 168 N.H. at 415, 130 A.3d at 577 (quotation omitted); see State v. Chick, 141 N.H. 503, 507, 688 A.2d 553 (1996) ("The State is not required to provide a bill of
particulars except when necessary for the preparation of a defense or to preclude a later unconstitutional prosecution." (quotation omitted)). "The decision whether to grant a motion for a bill of particulars is committed to the trial court's sound discretion." State v. Sweeney, 151 N.H. 666, 678, 867 A.2d 441 (2005). "We will not reverse the trial court's decision unless the defendant shows that it was clearly untenable or
unreasonable to the prejudice of his case." Id.
Here, the two-count indictment alleged that the defendant acted "in concert with" Texeira to cause injury to the victim. We have "consistently stated that language in an indictment alleging that a defendant acted ‘in concert with’ another is sufficient to charge the defendant both as a principal and as an accomplice." State v. Winward, 161 N.H. 533, 539, 20 A.3d 338 (2011) (quotation omitted). Thus, even assuming that—despite the "in concert with" language used in the indictment here—as the defendant asserts, the State proceeded against him solely as an accomplice, he was sufficiently charged at least as an accomplice to the assault. Accordingly, the indictment provided sufficient notice to the defendant that he was charged, at the very least, with soliciting, aiding, or attempting to aid Texeira in causing bodily injury to the victim through the use of a baton or other blunt object. See id. (concluding in attempted burglary case that, because "indictment clearly alleged both principal and accomplice liability, it provided sufficient notice to the defendant that he was charged with either removing the window screen himself or soliciting, aiding or attempting to aid another in removing the window screen").
Moreover, all of the elements of first degree assault were alleged in the indictment. See RSA 631:1, I (describing elements of first degree assault). As we have stated, "[a]n indictment is generally sufficient if it recites the language of the relevant statute: typically it need not specify the means by which the crime was accomplished, or other facts that are not essential elements of the crime." Chick, 141 N.H. at 506, 688 A.2d 553 ; see Carr, 167 N.H. at 269, 110 A.3d 829.
Additionally, because the defendant was charged at least as an accomplice, "there is no further and independent requirement to identify the acts by which [the] defendant may have committed the offense, or to limit proof of guilt to acts specifically pleaded." Winward, 161 N.H. at 540, 20 A.3d 338 (quotation and brackets...
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