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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 
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(2014). On one of the reckless conduct charges, he received a time-served 

sentence. On the two remaining charges, he received consecutive three-andone-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
3

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 
4

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-inchief, 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 
5

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 
6

constitutional privilege against compelled self-incrimination when it ruled that, 

if he testified for a limited purpose at sentencing, the government could crossexamine 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 crossexamination).

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 
7

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 crossexamined 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 selfincrimination 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 crossexamination 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 crossexamination 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 
8

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.