State v. Russo, 164 N.H. 585

Defendant Amato Russo was convicted by jury of two counts of theft by deception and two alternative counts of theft by unauthorized taking.
RSAs provide penalties; he represented himself with standby counsel, and the court later imposed an extended term of imprisonment.
In 2004 Russo formed a relationship with Rosetta Judge, who lent him about $24,000 under the pretense of starting a sausage pie business.
Judge testified that Russo admitted being on parole; the State sought to admit prior convictions, but the court withheld ruling until admissibility was determined.
Judge testified during direct examination about parole status, which Russo moved for mistrial over; the trial court offered a limiting instruction the next day.
After trial, Russo argued standby counsel’s participation violated his right to self-representation; he had previously elected to represent himself.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Judge's parole reference required a mistrial.	Parole reference was improper but curable via instruction.	Parole testimony unambiguously conveyed prior crimes requiring mistrial.	No mistrial required; limiting instruction cured prejudice.
Whether standby counsel's trial participation violated self-representation rights.	McKaskle framework allows limited standby participation to aid defendant.	Standby involvement undermines defendant's self-representation and appearances.	No violation; defendant maintained control and participation was minimal.
Whether extended term of imprisonment was properly imposed under RSA 651:6.	Two prior qualifying convictions existed, justifying an extended term.	Not all required prior imprisonments existed at notices; prejudice if not.	Proper; prior convictions and suspensions fulfilled statutory requirements and no prejudice shown.

State v. Willey, 163 N.H. 532 (N.H. 2012) (mistrial when prior conduct conveyed unambiguously; use of curative instruction)
State v. Kerwin, 144 N.H. 357 (N.H. 1999) (prior similar acts conveyed to jury; mistrial may be warranted)
State v. LaBranche, 118 N.H. 176 (N.H. 1978) (mistrial when witnesses testified to prior charge; similar conduct)
State v. Woodbury, 124 N.H. 218 (N.H. 1983) (mistrial due to detective’s testimony about prior charge)
State v. Ellison, 135 N.H. 1 (N.H. 1991) (concern about unfairness of admitting prior acts evidence)
State v. Mackin, 927 S.W.2d 553 (Mo. Ct. App. 1996) (isolated parole reference not itself a mistrial to rely on)
Ayer v. State, 150 N.H. 14 (N.H. 2003) (right to self-representation; standby counsel role under state constitution)
McKaskle v. Wiggins, 465 U.S. 168 (U.S. 1984) (limits on standby counsel participation to preserve self-representation)
Faretta v. California, 422 U.S. 806 (U.S. 1975) (right to self-representation; control over defense)
Dansereau v. State, 157 N.H. 596 (N.H. 2008) (Apprendi era interpretation of RSA 651:6; is two prior convictions requirement)
Coppola, 130 N.H. 148 (N.H. 1987) (pretrial notice purpose for extended term; prejudice inquiry)
Hurlburt, 135 N.H. 143 (N.H. 1991) (pretrial notice sufficiency; no prejudice shown)