State v. Boetti
| Decision Date | 14 August 1997 |
| Docket Number | No. 96–026.,96–026. |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Charles BOETTI. |
Steven M. Houran, Acting Attorney General (Charles T. Putnam, Senior Assistant Attorney General, on the brief and orally), for the State.
Twomey & Sisti Law Offices, Chichester (Mark L. Sisti on the brief and orally), for defendant.
The defendant, Charles Boetti, was convicted of two counts of aggravated felonious sexual assault after a jury trial in Superior Court (O'Neill , J.). See RSA 632–A:2 (1996). He appeals his convictions on two grounds: (1) the trial court's curative instructions during the prosecutor's closing argument were inadequate; and (2) the trial court erred in denying his motions for a mistrial and to set aside the verdicts because the prosecutor's closing argument was improper. We affirm.
The defendant was charged with engaging in various sexual acts with the fourteen-year-old victim over a four-day period while he was looking after her during her mother's hospitalization. During the prosecutor's closing argument, defense counsel made several objections, most of which were sustained. The defendant first objected to the prosecutor's declaration that "the evidence we heard last week, I don't think it was innuendo." The trial judge sustained the objection and advised the prosecutor to avoid rendering personal opinions on the evidence. The defendant next objected to the prosecutor's statement that the jury should "stand up" for the victim who was standing up for herself and "other possible victims." This objection was overruled. When the prosecutor subsequently attempted to define a term in the sexual assault statute, another objection was raised. The defendant observed that the trial court had previously rejected the State's request to read the proffered definition of cunnilingus as a jury instruction. The trial court sustained the objection. The prosecutor then told the jury that the State did not have to establish any penetration to prove cunnilingus, and the defendant both objected and moved for a mistrial. The court sustained the objection but denied the motion.
The State's closing argument came to a halt again when the prosecutor argued that the defense strategy in the case did not serve "a truth-seeking function." The court sustained the defendant's objection. A comment about the implausibility of a defense argument brought an objection that the prosecutor was improperly shifting the burden of proof. The objection was overruled, but the court informed the prosecutor that "if you go any farther, you might have problems, counsel." The next objection followed the prosecutor's attempt to downplay the absence of certain incriminating evidence by speculating about possible defense responses to such evidence. The objection was sustained. The final objection came when the prosecutor told the jury that even when the victim was "given the opportunity to say bad things about the defendant, she was very honest." The objection was sustained. At the completion of the prosecutor's closing argument, the court held a bench conference to announce its finding "that the curative instructions provided [earlier] ... [would] allow the jury to make a fair and just verdict." The defendant excepted to this ruling by renewing his motion for a mistrial.
In total, the trial court sustained six objections to the State's closing argument and overruled another with a caveat. After each sustained objection, the court instructed the jury to disregard the prosecutor's last statement. While on one occasion the defendant sought more substantial curative instructions, the trial court did not oblige. When charging the jurors on the law, the court instructed them that they were to follow the court's legal definitions, "and ignore [any contrary] statements of the lawyers." Following the jury's guilty verdicts, the defendant moved to set them aside on the basis that the prosecutor's closing argument, taken as a whole, "rendered the Court's curative instruction[s] meaningless." The court denied the motion, again finding that "the curative instruction(s) provided at trial effectively negated any unfair prejudice to the Defendant." This appeal followed.
The State contends that the defendant did not object to the adequacy of the trial court's curative instructions, and, therefore, the issue is not preserved for appeal. See State v. Preston, 121 N.H. 147, 150, 427 A.2d 32, 34 (1981). We agree with the State that the defendant waived any objection to the bulk of the curative instructions because no timely objections were taken to their content. We conclude, however, that the defendant adequately preserved his request for a more substantial curative instruction when the prosecutor asserted that the defense strategy did not serve "a truth-seeking function." During the bench conference following the objection, defense counsel initially requested an instruction indicating that he had done nothing unethical or deceitful. When the court advised counsel that it would simply instruct the jury to disregard the prosecutor's statement, the defense again sought a more substantial curative instruction. Apparently reasoning that the specific instruction requested by the defense was unnecessary, the court told the jury to disregard the prosecutor's comment. While the State argues that the defendant should have objected again, we conclude that he was under no obligation to do so once it became apparent that the trial judge had conclusively decided to simply instruct the jury to disregard the prosecutor's last remark. Cf. State v. Simonds, 135 N.H. 203, 205, 600 A.2d 928, 929 (1991). Accordingly, we focus our attention on the substance of the defendant's argument.
When reviewing the sufficiency of a curative jury instruction in the context of a prosecutor's improper remark, the trial court is granted considerable deference, and its ruling will only be reversed if the content of the instruction evidences an abuse of discretion. See State v. Zapata, 297 N.J.Super. 160, 687 A.2d 1025, 1033 (App.Div.1997) ; cf. State v. Macrae, 141 N.H. 106, 114, 677 A.2d 698, 704 (1996). The adequacy of a particular jury instruction necessarily depends on "the capacity of the offending [comment] to lead to a verdict that could not otherwise be justly reached." Zapata, 687 A.2d at 1033 (quotation omitted). While there may be some instances in which curative instructions would be inadequate as a matter of law, cf. State v. Sammataro, 135 N.H. 579, 582, 607 A.2d 135, 136 (1992), we base our review on the familiar presumption that jurors follow the trial court's instructions. See State v. Smart, 136 N.H. 639, 650, 622 A.2d 1197, 1204, cert. denied, 510 U.S. 917, 114 S.Ct. 309, 126 L.Ed.2d 256 (1993) ; Watkins v. Boston & M.R., 84 N.H. 124, 128, 146 A. 865, 867 (1929).
The prosecutor's assertion that the defense strategy in the case did not serve "a truth-seeking function" improperly placed the professional standards and integrity of defense counsel before the jury. Because the prosecutor had not made any such charges earlier in her closing argument, and the defendant's prompt objection brought any potential embellishment of the charge to a quick halt, the trial court could reasonably find, under all the circumstances, that its jury instruction was adequate to eliminate any prejudice caused by the prosecutor's statement. We cannot say that such a conclusion constituted an abuse of discretion, and therefore proceed to an examination of the trial court's rulings on the defendant's motions for a mistrial and to set aside the verdicts.
We review the trial court's rulings on the motions for a mistrial and to set aside the verdicts under the same legal standard: in both instances we will only overturn the trial court's ruling if we are convinced that the court abused its discretion. See State v. Turgeon,
137 N.H. 544, 546, 630 A.2d 276, 277 (1993) (); State v. Hunter, 132 N.H. 556, 561, 567 A.2d 564, 568 (1989) (mistrial). Therefore, we address both within our discussion of the motion for a mistrial.
A county attorney, like any public prosecutor, differs from the usual advocate in that his or her duty is to seek justice, not merely to obtain convictions. Preston, 121 N.H. at 151, 427 A.2d at 34. As the United States Supreme Court said over sixty years ago, "[i]t is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), overruled on other grounds by Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Improper argument, while objectionable in any case, is especially troublesome when made by a prosecutor, as the "prosecutor is likely to be seen by the jury as an authority figure whose opinion carries considerable weight." State v. Bujnowski, 130 N.H. 1, 4, 532 A.2d 1385, 1387 (1987). In examining claims of prosecutorial misconduct during closing argument, we face the delicate task of balancing a prosecutor's broad license to fashion argument with the need to ensure that a defendant's rights are not compromised in the process. Cf. Turgeon, 137 N.H. at 547, 630 A.2d at 277–78; State v. Sylvia, 136 N.H. 428, 431, 616 A.2d 507, 509 (1992).
A prosecutor's actions may constitute overreaching 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." Sylvia, 136 N.H. at 431, 616 A.2d at 509 (quotation omitted). Intentional or repetitive misconduct by a prosecutor may require reversal of a conviction. See Bujnowski, 130 N.H. at 5–6, 532 A.2d at 1387–88. Reversal may also be appropriate when the prosecutor's conduct ...
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