State v. Joseph Kuchman, 168 N.H. 779

Background

On Jan. 19, 2011, victim was assaulted outside a Rochester bar; Joshua Texeira struck him with an expandable baton and the victim suffered serious injuries; both Texeira and Joseph Kuchman were later identified by the victim.
A grand jury indicted Kuchman on two counts of first‑degree assault (each alleging he acted “in concert with” Texeira); Kuchman was also charged by information with simple assault (one count nolle prossed).
At trial the State rested, one first‑degree count was dismissed, the jury acquitted on a simple assault count, and convicted Kuchman of one count of first‑degree assault.
Kuchman moved for a bill of particulars, multiple mistrials, and moved to exclude a post‑deposition phone call between Texeira and his mother; the trial court denied relief and Kuchman appealed.
The Supreme Court of New Hampshire affirmed, addressing sufficiency of indictment/bill of particulars, mistrial requests (multiple grounds), admissibility of the phone call under Rule 403, impeachment of State’s witness, and cross‑examination about defendant’s prior silence.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Kuchman)	Held
Sufficiency of indictment / bill of particulars	Indictment alleging acting “in concert with” is sufficient; no need to detail every theory	Indictment ambiguous as to which theory of liability (principal vs. various accomplice acts); requested bill to know State’s theory	Affirmed: indictment adequate; “in concert with” alleges principal and accomplice liability; bill not required absent undue prejudice
Mistrial after co‑defendant (Texeira) testifies he was convicted for acting in concert	Any taint cured by immediate sustaining of objection and curative instruction	Testimony was highly prejudicial and required mistrial	Affirmed: curative instruction sufficient; no irreparable prejudice warranting mistrial
Admissibility of Texeira’s phone call (read for impeachment) under Rule 403	Phone call highly probative of witness credibility (impeachment); limiting instruction given	Phone call unduly prejudicial and effectively substantive against Kuchman	Affirmed: probative value substantial and unfair prejudice minimal; admission within trial court’s discretion
Delay in giving limiting instruction about phone call; mistrial requested	Court reasonably briefed the issue and gave the limiting instruction at next trial day; no intervening evidence	Delay prejudiced jury and required mistrial	Affirmed: instruction given at next session and no evidence presented in interim; no irreparable prejudice
Use of State’s impeachment of its own witness (subterfuge)	State may impeach its own witness; Texeira’s testimony was instrumental and not mere pretext	Impeachment used to place otherwise inadmissible substantive evidence before jury	Affirmed: impeachment was legitimate; Texeira’s testimony was instrumental to State’s case
Cross‑examination about why defendant did not give his version earlier	Questioning permissible because no evidence defendant received Miranda warnings	Question impermissibly comments on defendant’s silence and required mistrial	Affirmed: no Miranda evidence in record; use of silence for impeachment does not violate due process when Miranda not given

Key Cases Cited

State v. Winward, 161 N.H. 533 (2011) ("in concert with" language charges principal and accomplice liability)
State v. Carr, 167 N.H. 264 (2015) (indictment sufficient if it recites statutory language)
State v. Sanborn, 130 A.3d 563 (N.H. 2015) (bill of particulars is tool to clarify inadequate indictments)
State v. Chick, 141 N.H. 503 (1996) (indictment need not allege means beyond elements)
State v. Doucette, 146 N.H. 583 (2001) (accomplice may be convicted on overt acts not specifically alleged)
State v. Soldi, 145 N.H. 571 (2000) (State cannot use impeachment as subterfuge to introduce substantive hearsay)
State v. Gibson, 153 N.H. 454 (2006) (curative instruction can cure prejudicial remarks)
Doyle v. Ohio, 426 U.S. 610 (1976) (post‑Miranda silence cannot be used for impeachment)
Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda warnings and custodial interrogation principles)
Fletcher v. Weir, 455 U.S. 603 (1982) (post‑arrest, pre‑Miranda silence may be used for impeachment)
Jenkins v. Anderson, 447 U.S. 231 (1980) (pre‑arrest silence may be used for impeachment)
State v. Russo, 164 N.H. 585 (2013) (mistrial appropriate only for irreparable prejudice)
State v. Wells, 166 N.H. 73 (2014) (cannot "unring a bell"; mistrial standard)