State v. Michael Euliano.

• Decision Date: 16 March 2011
• Docket Number: No. 2009–797.,2009–797.
• Citation: 20 A.3d 223,161 N.H. 601
• Parties: The STATE of New Hampshirev.Michael EULIANO.
• Court: New Hampshire Supreme Court

161 N.H. 601

20 A.3d 223

The STATE of New Hampshire

v.Michael EULIANO.

No. 2009–797.

Supreme Court of New Hampshire.

Argued: Nov. 10, 2010.Opinion Issued: March 16, 2011.

Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.Lisa L. Wolford, assistant appellate defender, of Concord, on the brief and orally, for the defendant.HICKS, J.

The defendant, Michael Euliano, appeals his conviction on one count of second degree assault, see RSA 631:2 (2007) (amended 2010), one count of conduct after an accident, see RSA 264:25 (2004), and two counts of reckless conduct, see RSA 631:3 (2007). On appeal, he argues that the Superior Court ( Barry, J.) erroneously: (1) commented on the evidence in the presence of the jury; and (2) denied his motion to dismiss the reckless conduct indictments. We affirm.

The jury could have found or the record supports the following. In the early morning hours of November 12, 2007, the defendant drove his car onto the sidewalk of Cross Street in Nashua and struck and injured Juan Pech. He also hit Miguel Bisono and Jose Baez. The defendant did not stop. Later that morning, a number of officers went to the defendant's home and told him to go to the Nashua Police Station. He complied and was arrested. The defendant was interviewed by Detective Steve Sweeney and Detective Jonathan Lehto. During the interview, he admitted to accidentally hitting someone earlier that morning but denied that he swerved onto the sidewalk to do so.

The defendant was indicted for second degree assault, conduct after an accident and reckless conduct. At trial, Officer Sean Mabry of the Nashua Police Department testified that shortly after midnight on November 12, 2007, he was dispatched to the area of Cross Street for “a report of a large disturbance with approximately 15 people.” He testified that after he parked and exited his cruiser, he heard “[s]omeone in the crowd yell[ ]— you know—that car just ran over my friend.” Officer Mabry stated that the car drove within two feet of him and, as it did so, he observed the defendant driving and “shouted stop, police, several times,” but the defendant did not stop.

Pech, Baez and Bisono also testified at trial. Pech testified that he was walking on the sidewalk when he noticed the defendant's vehicle speeding towards him and his friends and then “g[et] on the sidewalk,” but that he did not remember anything after that. Baez testified that he was on the sidewalk with Pech when Pech was hit by a car driven by the defendant. He testified that he felt the mirror of the car touch him. Bisono testified that he too was on the sidewalk with Pech when he observed a car go “on top of” the sidewalk and hit Pech. He stated that the car also made contact with him. According to Pech and Bisono, the defendant did not stop at the scene of the accident. Detective Sweeney testified about his interview with the defendant and during his testimony, the State played the videotape of the defendant's interview.

The defendant asserted self-defense. He testified that he was driving up Cross Street when a van pulled up to his right and his friend jumped out and told him to stop. The defendant explained that at this point he turned around because he “noticed in [his] rearview mirror that about 30 kids were running up the street with bats and machetes.” He stated that he saw someone hit his friend's shoulder with a machete and he “took off ... down Cross Street.” He stated that “the road was full of people.” He explained that he “[s]werved around them as much as [he] could,” but that he “[e]nded up driving on the sidewalk” and hitting Pech. The defendant admitted that after he hit Pech, he kept driving. He further stated that he did not “tr[y] to hit anybody.”

The State cross-examined the defendant concerning inconsistencies between his trial testimony and the information he gave to the police in his videotaped statement. He agreed with the prosecutor's statement that his “story” was “considerably different from the one [he] gave the police on the morning of the incident.” He indicated that he “crossed over the lane and onto the sidewalk and hit [Pech] on the sidewalk.” Additionally, he conceded that he could have left the area by taking an alternate route but that instead he turned around and drove towards the crowd.

At the close of the evidence, the defendant moved to dismiss the two reckless conduct indictments, arguing that they are insufficient to charge felony reckless conduct because they fail to allege that the instrument used by the defendant in committing the crime constituted a deadly weapon. The court denied the motion. The jury found the defendant guilty of all charges and this appeal followed.

The defendant first argues that the trial court made improper comments during the course of his trial in violation of his rights to due process and to an impartial judge under the Fifth and Sixth Amendments to the Federal Constitution and Part I, Articles 15 and 35 of the State Constitution. The defendant concedes that he did not object to the trial court's comments. Nonetheless, he contends that we should review the trial court's conduct under the plain error rule.

The plain error rule allows us to exercise our discretion to correct errors not raised before the trial court. See Sup.Ct. R. 16–A; State v. Russell, 159 N.H. 475, 489, 986 A.2d 515 (2009). For us to find plain error: “(1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights.” State v. Panarello, 157 N.H. 204, 207, 949 A.2d 732 (2008) (quotation and brackets omitted). Generally, to satisfy the burden of demonstrating that an error affected substantial rights, the defendant must demonstrate that the error was prejudicial, i.e., that it affected the outcome of the proceeding. State v. Lopez, 156 N.H. 416, 425, 937 A.2d 905 (2007). If all three of these conditions are met, we may then exercise our discretion to correct a forfeited error only if the error meets a fourth criterion: the error must seriously affect the fairness, integrity or public reputation of judicial proceedings. See Panarello, 157 N.H. at 207, 949 A.2d 732. The rule is used sparingly, however, and is limited to those circumstances in which a miscarriage of justice would otherwise result. See id.

The defendant argues that, on three separate occasions, the trial court “expressed a judicial opinion on the evidence, on [his] guilt, and on his credibility.” The defendant maintains that this conduct prejudiced him, thereby denying him a fair trial. The first comment occurred during the State's direct examination of Detective Dennis Lee of the Nashua Police Department concerning his involvement in the investigation:

Q. And while you were there, did you locate any type of a crime scene?

A. We did.

Q. And where was that located?

A. Just north of the intersection of Canal Street and Cross Street.

[Defense counsel]: Objection, Your Honor, foundation for this?

....

[Defense counsel]: There's no foundation.

THE COURT: For what?

[Defense counsel]: For any crime scene. What crime? We haven't heard about any crime from this witness.

THE COURT: Well, you know, the people weren't out there saying the rosary from what I can get so far....

The second comment occurred shortly thereafter during the State's direct examination of the same witness:

Q. And with this map of Nashua, could you just indicate where the general vicinity it was of the crime scene that you found?

A. Approximately it was in the area of—

[Defense counsel]: Objection, Your Honor. Your Honor, the State hasn't established that any crime occurred. It said in the opening—and I stipulate now—that [the victim] was hit by [the defendant]. But that's not a crime—it was an occurrence of self-defense. It was an act. So I object to the Prosecutor continuing to refer to it as a crime scene. It was an accident scene.

THE COURT: Hit and run is a crime.... At least it was when I got admitted to the bar in 1968. And it still is as far as I know. And there's been evidence so far of a hit and run taking place. And I'll allow it. Objection overruled.

The final comment followed the State's introduction of the videotaped interview of the defendant. After the videotape concluded, the court stated: “Well, I don't think that's going to win any Academy Awards. We're going to recess at this point and we'll resume at ten o'clock tomorrow.”

While we do not condone the trial court's conduct, after reviewing the record in this case, we are not persuaded that the challenged comments give rise to plain error affecting the defendant's substantial rights. The comments do not express a judicial opinion on the defendant's guilt or credibility as suggested by the defendant. Indeed, the first two comments did not occur during testimony about the defendant. The first comment was made following testimony describing “a large disturbance” involving “multiple people fighting—acting disorderly” and “bordering” on a riot. As such, the jury could easily have understood the comment to be referring to the “large disturbance.” It cannot reasonably be construed to imply, as the defendant alleges, that the trial court believed the defendant to be “a bad person who had committed a crime.” Cf. Young v. Clogston, 127 N.H. 340, 344, 499 A.2d 1007 (1985) (finding that the trial court's dialogue with a witness “could have colored the jury's decision as to the reasonableness of the plaintiff's conduct and was improper”).

The second comment was made during Detective Lee's testimony about his investigation of a hit and run. Prior testimony by Officer Mabry also indicated that a hit and run had occurred. Thus, the trial court's statement reflected the evidence offered by the officers in their testimony regarding the investigation of a hit and run. While a single direct response to the objection would have been preferable, a trial judge is...