New Hampshire v. Batista-SalvaAnnotate this Case
Jose Batista-Salva, appealed his conviction for witness tampering following a jury trial in Superior Court. He was accused of the armed robbery of a Wendy's in Nashua, New Hampshire; he used to work at the restaurant, and though he was wearing a bandana to obscure his face, a manager there believed he recognized the robber's voice as Batista-Salva's. Batista-Salva raised three arguments on appeal, each of which was premised on an underlying argument that the witness tampering indictment was impermissibly constructively amended. To the extent his arguments were not preserved, he asked the New Hampshire Supreme Court to waive our preservation requirement or consider them under plain error review. The Court declined, finding that the record in this case was ambiguous as to whether defendant relied on the factual allegations in the indictment in defending against the witness tampering charge. The Court declined to waive the preservation requirement in the absence of the record it needed to properly evaluate the merits of defendant's argument. Given these conclusions, the court did not consider any of defendant's other arguments, rejecting the premise on which they relied. As such, the Court affirmed the trial court.