State v. Ellsworth

• Citation: 855 A.2d 474,151 N.H. 152
• Decision Date: 25 June 2004
• Docket Number: No. 2003-354.,2003-354.
• Court: Supreme Court of New Hampshire
• Parties: The STATE of New Hampshire v. Richard ELLSWORTH.

151 N.H. 152

855 A.2d 474

The STATE of New Hampshire

v.Richard ELLSWORTH.

No. 2003-354.

Supreme Court of New Hampshire.

Argued: March 10, 2004.

Opinion Issued: June 25, 2004.

Peter W. Heed, attorney general (Elizabeth A. Dunn, 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.

DUGGAN, J.

The defendant, Richard Ellsworth, was convicted after a jury trial in Superior Court (Mohl , J.) on one count of aggravated felonious sexual assault, see RSA 632-A:2, II (Supp.2003), and three counts of felonious sexual assault, see RSA 632-A:3, III (1996). On appeal, he argues that the trial court erred when it: (1) denied his motion for a mistrial after the prosecutor made unfairly prejudicial statements during closing argument; and (2) excluded a statement in which he denied assaulting the victim. We reverse and remand.

The jury could have found the following facts. In February 2002, the defendant hired Tim Meserve to help him build a house on land that the defendant owned in Barrington. At that time, Meserve lived with his fiance and her two daughters. On March 1, 2002, the defendant asked the victim, the twelve-year-old daughter of Meserve's fiance, to stay overnight in a small trailer at the Barrington site. The defendant told the victim that he needed her to babysit his five-year-old son, Patrick. The victim agreed and accompanied the defendant, Meserve and Patrick to the Barrington site, where she watched Patrick while the defendant and Meserve worked.

At approximately 11:30 p.m., the defendant and Meserve finished working. They returned to the trailer and began watching a video with the children. Soon after the video started, Meserve fell asleep on the floor. The defendant, Patrick and the victim watched the video on a pull-out couch. The victim fell asleep while the video was still on. At trial, she testified that she was lying on the edge of the couch with her back against the wall of the trailer. Patrick slept beside her and the defendant slept on the other side of Patrick.

The victim testified that she awoke during the night and felt the defendant's foot rubbing her vaginal area over her clothes. She further testified that after five to ten minutes, the defendant stopped rubbing her vaginal area and used his foot to rub her breasts over her sweatshirt. The defendant then sat up, pushed the victim's sweatshirt and bra up, and touched her breast with his hand. After a few minutes, the defendant laid back down and used his foot to rub her breast and buttocks.

The defendant was subsequently indicted on one count of aggravated felonious sexual assault and three counts of felonious sexual assault. After a jury trial in January 2003, he was convicted on all counts. The defendant was sentenced to ten to twenty years in the New Hampshire State Prison on the aggravated felonious sexual assault conviction, a two-and-one-half to five year consecutive term on one felonious sexual assault conviction, and suspended consecutive terms on the two remaining felonious sexual assault convictions. This appeal followed.

The defendant first argues that because the prosecutor made unfairly prejudicial statements during closing argument, the trial court erred in denying his motion for a mistrial. The defendant additionally contends that the corrective measures taken by the trial court in response to the prosecutor's comments were inadequate and, therefore, "vindication of [his] rights to due process and a fair trial and his privilege against self-incrimination, protected by Part I, Article 15 of the New Hampshire Constitution, and the Fifth and Fourteenth Amendments to the [F]ederal [C]onstitution, require this [c]ourt to reverse the convictions." We agree.

"Mistrial is the proper remedy only if the evidence or comment complained of was not merely improper, but also so prejudicial that it constitutes an irreparable injustice that cannot be cured by jury instructions." State v. Boetti, 142 N.H. 255, 261, 699 A.2d 585 (1997) (quotation omitted). The trial court is in the best position to determine what remedy will adequately correct the prejudice created by a prosecutor's remarks, and absent an unsustainable exercise of discretion, we will not overturn its decision. Id.; cf . State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) (explaining unsustainable exercise of discretion standard).

We first address the defendant's arguments relying upon the New Hampshire Constitution and reference federal cases only to aid in our analysis. See State v. Haines, 142 N.H. 692, 701, 709 A.2d 762 (1998) ; see also State v. Ball, 124 N.H. 226, 232, 471 A.2d 347 (1983).

It is well-settled that "[i]mproper 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." Boetti , 142 N.H. at 260, 699 A.2d 585 (quotation omitted). We recognize that prosecutors may, and should, "present their cases to criminal juries zealously." United States v. Taylor, 54 F.3d 967, 976 (1st Cir.1995).

Yet, while a prosecutor "may strike hard blows, he is not at liberty to strike foul ones." This maxim is particularly relevant to closing arguments, for such arguments come at an especially delicate point in the trial process and represent the parties' last, best chance to marshal the evidence and persuade the jurors of its import.

Id. at 977.

It is equally well-settled that a defendant's decision not to testify or present evidence in his own defense can provide no basis for an adverse comment by the prosecutor. State v. Fowler, 132 N.H. 540, 545, 567 A.2d 557 (1989). Comment either by a prosecutor or the court which may be construed as an unfavorable reference to the failure of a defendant to testify is a violation of the defendant's constitutional right against self-incrimination. State v. Fowler, 110 N.H. 110, 112, 261 A.2d 429 (1970).

As a threshold matter, we must determine whether the prosecutor's remark amounted to an impermissible comment upon the defendant's decision not to testify. United States v. Rodriguez, 215 F.3d 110, 122 (1st Cir.2000), cert. denied , 532 U.S. 996, 121 S.Ct. 1658, 149 L.Ed.2d 640 (2001). If the prosecutor's remark was impermissible, we must then establish whether the error requires reversal of the verdict. Id. In doing so, we balance the following factors: "(1) whether the prosecutor's misconduct was isolated and/or deliberate; (2) whether the trial court gave a strong and explicit cautionary instruction; and (3) whether any prejudice surviving the court's instruction likely could have affected the outcome of the case." Id. (quotation omitted); see also State v. Turgeon, 137 N.H. 544, 547-48, 630 A.2d 276 (1993) (applying three factors in case where defendant claimed prosecutor's comments about his failure to testify violated his Sixth Amendment right to a fair trial under the Federal Constitution).

In the present case, during closing argument, the prosecutor stated:

Now, don't be intimidated by the constant suggestion that somehow [the victim] has to come forward and explain exactly how the defendant touched her private parts. I mean, there's one person that knows exactly how he made his foot go and touch [the victim's] private parts. That is [the defendant]. It is not [the victim's] job to try and explain it to you.

Defense counsel immediately moved for a mistrial. The trial court denied the motion and, instead, directed the prosecutor to explain his remarks to the jury. Thus, following a bench conference, the prosecutor told the jury: "I'm not suggesting that the defendant has an obligation to explain himself; he doesn't. Our constitution guarantees him the right not to testify, and the judge is gonna give you that instruction at the end of the trial."

Later, when the court charged the jury, it said:

The defendant has an absolute right not to take the witness stand to testify. The fact that the defendant did not testify in this case may not be considered by you in any way in deciding the case. The [S]tate has the burden of proving guilt beyond a reasonable doubt. The defendant has no obligation to present evidence or to prove that he is innocent.

We must first determine whether the prosecutor's remark amounted to an impermissible comment on the defendant's decision not to testify. Rodriguez , 215 F.3d at 122. The State argues that our decision is controlled by United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988). In Robinson , defense counsel in closing argument said that "the Government had unfairly denied [the defendant] the opportunity to explain his actions." Robinson , 485 U.S. at 27, 108 S.Ct. 864. The prosecutor responded by telling the jury that the defendant could have taken the stand and explained himself. Id. at 28, 108 S.Ct. 864. The United States Supreme Court held "that the prosecutor's statement that [the defendant] could have explained to the jury his story did not in the light of the comments by defense counsel infringe upon [the defendant's] Fifth Amendment rights." Id. at 31, 108 S.Ct. 864. In reaching this conclusion, the court reasoned that the prosecutor's statement was a "fair response" to defense counsel's claim that the government did not give the defendant the opportunity to explain himself. Id. at 32, 108 S.Ct. 864.

The State argues that like the prosecutor's comment in Robinson , the prosecutor's comment in this case was permissible because it was a fair response to defense counsel's claim that the prosecution did not adequately investigate the victim's allegations. We disagree and find this case distinguishable from Robinson .

Here, in his closing argument, defense counsel criticized the State's investigation of the victim's allegations and stated:

Ladies and gentlemen of the jury, this is an American courtroom, an American court of

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