State v. Bujnowski

• Decision Date: 15 October 1987
• Docket Number: No. 86-349,86-349
• Citation: 532 A.2d 1385,130 N.H. 1
• Parties: The STATE of New Hampshire v. Richard BUJNOWSKI.
• Court: New Hampshire Supreme Court

Page 1385

532 A.2d 1385

130 N.H. 1

The STATE of New Hampshire v. Richard BUJNOWSKI.

No. 86-349.

Supreme Court of New Hampshire.

Oct. 15, 1987.

Stephen E. Merrill, Atty. Gen. (Bradford W. Kuster, Asst. Atty. Gen., on brief and orally), for State.

Kinghorn, Maynard, Craighead & Dionne P.A., Nashua (Rodkey Craighead, Jr., on brief and orally), for defendant.

THAYER, Justice.

The defendant, Richard Bujnowski, was convicted by a jury of aggravated felonious sexual assault upon his ten-year-old stepson. RSA 632-A:2, XI. The Trial Court (Pappagianis, J.) sentenced the defendant to the New Hampshire State Prison for not less than five years and not more than fifteen years. The defendant appeals his conviction on the ground that the trial court erred in not granting a mistrial because the State severely prejudiced the defendant's right to a fair trial by (1) making improper statements to the jury during its opening and closing statements, and (2) failing to produce an investigative police report. Because we find that the prosecutor's improper statements in closing argument require reversal, we need not address the other issues presented by this appeal.

The sordid details of this child molestation case need not be set forth. It is sufficient to examine only the circumstances surrounding the State's closing argument to the jury. During trial, the defense called the defendant's wife to testify with respect, among other things, to statements made by the victim that the assault never took place and that the story was a fabrication. In his closing argument, the prosecutor commented on Mrs. Bujnowski's testimony:

"There were some inconsistencies in her testimony, and that it's not unreasonable to ask, was she telling the truth in everything she said? And I think for ninety-nine percent of it she was lying. I think she's here to protect her husband."

(Emphasis added.) At this point, defense counsel requested a conference at the bench. The defendant objected to the prosecutor's statements and moved for a mistrial. The court denied the defendant's motion, but agreed to give a curative instruction at the close of the State's argument. Out of the hearing of the jury, the court instructed counsel that:

"There are cases which say the lawyer, in this case a prosecutor, should not give his personal opinion. It comes to mind as cases where the prosecutor says that his personal opinion is that the defendant is guilty. I don't recall any cases where the prosecutor says that he thinks a witness is lying. Then again, I say that is not the law. I don't know."

The prosecutor then issued a retraction to the jury. He told the jury that he had made a mistake by stating his opinion as to the veracity of Mrs. Bujnowski's testimony. However, in spite of the prosecutor's own admission of fault, he proceeded to assert his opinion as to the veracity of the witness' testimony, stating that:

"I think the evidence was clear on that particular matter, also the inconsistencies regarding the statements that she gave to [the police officer]. I think like Mr. Bujnowski, she has the gumption to say everybody in this case is lying except for the two of them."

(Emphasis added.) The prosecutor concluded by stating that "I think [the defendant is] guilty...." (Emphasis added.) The defendant renewed his motion for mistrial and objected to the curative effect of an instruction to the jury. The court denied both and, after the State concluded its closing argument, stated to the jury:

"[The prosecutor] has already said that this was an error when he gave you his personal opinion of what he believed or what witnesses he believed. And he's right. No lawyer should give you his personal opinion of what evidence he believes or of what witnesses he believes. No judge should give a personal opinion. It doesn't matter what the lawyers think, or what the judge thinks. The question of who was to be believed and what is to be believed is for the jury. It's for you; so I ask you that you ignore what [the prosecutor] said was his personal opinion, as he himself has also asked that you ignore."

The defendant argues here that he was seriously prejudiced by the prosecutor's assertion of his own personal opinion as to the credibility of the witness and the guilt of the accused. He argues, further, that because of this type of prosecutorial overreaching, the curative instruction given by the trial court was ineffective to negate the impact on the jury, and that a new trial is therefore required. We agree.

In order for the court to find "prosecutorial overreaching, the government must have, through gross negligence or intentional misconduct, caused aggravated circumstances to develop which seriously prejudiced a defendant, causing [the defendant] reasonably to conclude that continuation of the tainted proceeding would result in his conviction." State v. Lake, 125 N.H. 820, 823, 485 A.2d 1048, 1051 (1984). An improper comment made by the State during closing argument may, under certain circumstances, constitute prosecutorial overreaching requiring a new trial. See Lake, supra at 823, 485 A.2d at 1050.

It is well settled that it is improper for prosecutors to profess to the jury their personal opinions as to the credibility of a witness or the guilt of the accused. See United States v. Gonzalez Vargas, 558 F.2d 631 (1st Cir.1977). As a matter of professional ethics, "[a] lawyer shall not ... in trial ... state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused...." N.H. RULES OF PROFESSIONAL CONDUCT 3.4(e). "It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant." United States v. Young, 470 U.S. 1, 8, 105 S.Ct. 1038, 1043, 84 L.Ed.2d 1 (1984) (quoting ABA STANDARDS FOR CRIMINAL JUSTICE 3-5.8(b) (2d ed. 1980)).

The rationale for this rule is multi-fold. First, the public prosecutor is likely to be seen by the jury as an authority figure whose opinion carries considerable weight. "[T]he representative of the government approaches the jury with the inevitable asset of tremendous credibility--but that personal credibility is one weapon [that] must not [be used]." Gonzalez Vargas, supra at 633. Furthermore, the role of a prosecutor differs from that of the usual advocate in that a prosecutor's "duty is to seek justice, not merely to convict." State v. Preston, 121 N.H. 147, 151, 427 A.2d 32, 34 (1981) (quoting ABA CODE OF PROFESSIONAL RESPONSIBILITY, EC 7-13).

In the present case, the prosecutor committed...