THE STATE OF NEW HAMPSHIRE

SUPREME COURT

 

In Case No. 95-798, State of New Hampshire v. Carl H. Graf, the court upon April 23, 1999, made the following order:

Defendant's motion for reconsideration is denied.

The slip opinion dated January 15, 1999, is modified by deleting the second full paragraph on page 8 and replacing it with the following paragraph:

At the outset, we find that the county attorney's actions, as well as her later characterization of those actions, do not constitute prosecutorial misconduct, cf. State v. Boetti, 142 N.H. 255, 260, 699 A.2d 585, 588 (1997) (concluding overreaching occurs "when, through intentional misconduct or gross negligence, the prosecutor has produced a situation in which the defendant could reasonably conclude that continuation of the tainted proceeding would result in his conviction" (quotation and ellipsis omitted)), and, accordingly, did not violate the defendant's rights to due process. Moreover, we note that at the April 12, 1995, chambers conference, after the judge indicated that he intended to recuse himself, he asked all counsel whether there was any objection to his rendering a decision on the defendant's motion. The defendant's counsel indicated that he had no objection, and the court issued its order the next day. Although the defendant filed a motion to reconsider that order, the defendant did not raise any objection to the order having been issued by the recused judge. Nor was that issue raised in the defendant's subsequent motion to dismiss based on the county attorney's conduct. Finally, the record reveals that Judge Fauver re-addressed at least in part the admissibility of the privileged matters at issue in the defendant's motion during the course of the trial. Even if we assume that the defendant properly preserved for appeal the issue of whether the recused judge's ruling upon the defendant's motion violated due process, we conclude that the defendant has not demonstrated any prejudice and we find no violation of his due process rights. We have considered the defendant's remaining arguments on this issue and determine them to be without merit, warranting no further discussion. See Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595, 596 (1993).