State v. Parker
| Decision Date | 26 September 1997 |
| Docket Number | No. 96-152.,96-152. |
| Citation | 702 A.2d 306,142 N.H. 319 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Gordon K. PARKER. |
Steven M. Houran, Acting Attorney General (John A. Stephen, Assistant Attorney General, on the brief and orally), for the State.
Kinghorn & Maynard, P.A., Nashua (Steven L. Maynard, on the brief and orally), for defendant.
The defendant, Gordon K. Parker, was convicted of driving while intoxicated (DWI), second offense, see RSA 265:82 (1993) (amended 1995, 1996); RSA 265:82-b, I(b) (1993) (amended 1995, 1996), after a jury trial in superior court. On appeal, he argues that the prosecutor's comments concerning his refusal to submit to a blood alcohol test, see RSA 265:84 (Supp.1994) (amended 1995); RSA 265:87 (Supp.1996) ; RSA 265:88-a (1993) ; RSA 265:92 (1993 & Supp.1996), and the Superior Court's (Sullivan , J.) instruction to the jury regarding the defendant's refusal, improperly shifted the burden of proof from the State to the defendant and deprived him of his right to a fair trial. We affirm.
The following facts were adduced at trial. The defendant was observed by local police driving erratically on Route 101 in Amherst. The officer on patrol stopped the defendant's vehicle and, when he approached, observed that the defendant was slumped over in the driver's seat and that a strong odor of alcohol emanated from inside the car. Additionally, the officer testified that the defendant's eyes were bloodshot and his speech was difficult to understand. The defendant was unable to complete the field sobriety test administered by the patrol officer and was arrested for DWI. At the local police station, the officer read the defendant the implied consent form pursuant to RSA 265:84 and:87. The defendant was told that he had the right to refuse the test, see RSA 265:92, but that such refusal would result in the suspension of his driver's license and might be admissible into evidence at trial. See RSA 265:88-a ; State v. Cormier, 127 N.H. 253, 258, 499 A.2d 986, 989 (1985). The defendant refused to answer questions posed by the officer, instead requesting to speak with his attorney, and his conduct was deemed a refusal. See Jordan v. State, 132 N.H. 34, 36, 561 A.2d 1078, 1080 (1989).
At trial, the patrol officer testified as to the defendant's apparent intoxication and his refusal to take the blood alcohol test. In response, the defendant offered a number of alternative explanations for the evidence of impairment presented by the State. The defendant was convicted of DWI, second offense, and this appeal followed.
On appeal, the defendant argues that certain statements regarding his refusal to take the blood alcohol test made by the prosecutor during closing arguments, and by the court in its instructions to the jury, improperly suggested that it was his duty to prove his lack of intoxication. The relevant statutory provisions state, in pertinent part: "Any person who drives a vehicle upon the ways of this state shall be deemed to have given consent to physical tests and examinations for the purpose of determining whether he is under the influence of intoxicating liquor or controlled drugs...." RSA 265:84. An individual may refuse to take a blood alcohol test, see RSA 265:92, but such refusal "may be admissible into evidence in a civil or criminal action." RSA 265:88-a. Conduct that improperly shifts the burden of proof to a defendant in a criminal trial, however, implicates the defendant's due process rights under part I, article 15 of the New Hampshire Constitution, cf. In re Sanborn, 130 N.H. 430, 441-42, 545 A.2d 726, 733-34 (1988), and the fourteenth amendment to the Federal Constitution, see Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975).
The defendant first alleges that the prosecutor's statements during closing arguments regarding his deemed refusal to take the blood alcohol test were improper. The prosecutor urged the jury to Defense counsel objected, arguing at the bench that the prosecution was attempting to shift the burden of proof to the defendant by "suggesting that the defendant has to prove that he's not guilty."
The trial judge overruled counsel's objection, finding that "[a]ll [the prosecution is] doing is suggesting that [the defendant's] reason for not taking the test is that he was concerned that the test might prove that he was intoxicated, and it's proper argument." After the bench conference concluded, the prosecutor again argued to the jury: "As I was saying, ask yourselves why the defendant would not submit to the test if he had nothing to hide."
The defendant urges reversal on both due process and self-incrimination grounds. We need not address the defendant's State Constitutional claims, since when he objected to the prosecutor's comments at trial, he did not mention the State Constitution either generally or by citing a specific provision. State v. Fowler, 132 N.H. 540, 545, 567 A.2d 557, 559-60 (1989). Furthermore, the defendant also failed to specifically invoke a provision of our constitution in his notice of appeal or the relevant section of his brief. See, e.g., Belcher v. Paine, 136 N.H. 137, 149, 612 A.2d 1318, 1326 (1992) ; State v. Dellorfano, 128 N.H. 628, 632, 517 A.2d 1163, 1166 (1986). We accordingly consider only his federal constitutional claims. See Fowler, 132 N.H. at 545, 567 A.2d at 560.
The defendant first argues that the prosecutor's comments improperly shifted the burden of proof to the defendant because they implied that he had the obligation to present evidence of his innocence by taking the blood alcohol test. He asserts that "[a]n argument that misstates the presumption of innocence or the burden of proof in a criminal case is constitutionally infirm." Due process requires that the State prove each element of the crime charged beyond a reasonable doubt. See Mullaney , 421 U.S. at 685, 704, 95 S.Ct. at 1883, 1892; In re Winship , 397 U.S. 358, 359-64, 90 S.Ct. 1068, 1069-73, 25 L.Ed.2d 368 (1970). Accordingly, we must determine whether the prosecutor's comments were unfair and so infected the entire trial as to deprive the defendant of due process of law under the fourteenth amendment. Donnelly v. DeChristoforo , 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974).
We conclude that the comments at issue did not impermissibly shift the State's burden of proof. Rather, the prosecutor properly suggested that the reason the defendant did not take the test was because the results might show he was intoxicated, and that the jury may consider this evidence when determining whether the State had met its burden. See RSA 265:87 ; cf. State v. Bureau, 134 N.H. 220, 224, 589 A.2d 1013, 1015-16 (1991) (). Thus "we simply do not believe that this incident made [the defendant's] trial so fundamentally unfair as to deny him due process." Donnelly, 416 U.S. at 645, 94 S.Ct. at 1872.
The State casts the defendant's argument as raising a claim based on the constitutional privilege against self-incrimination. See Fowler, 132 N.H. at 544-45, 567 A.2d at 560. Offering evidence of a defendant's refusal to take a blood alcohol test, however, does not implicate a defendant's right not to furnish evidence against himself under the fifth and fourteenth amendments to the Federal Constitution. See South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 922-23, 74 L.Ed.2d 748 (1983) ; cf. Cormier, 127 N.H. at 260, 499 A.2d at 990 (). Accordingly, to constitute reversible error, the prosecutor's argument must "have caused aggravated circumstances to develop which seriously prejudiced a defendant, causing him reasonably to conclude that continuation of the tainted proceeding would result in his conviction." State v. Vandebogart, 139 N.H. 145, 160, 652 A.2d 671, 680 (1994) (quotation omitted). As noted above, the prosecutor's comments merely invited the jury to draw the permissible inference that the defendant refused to take the blood alcohol test because he feared it might show that he was intoxicated. Cf. id. (). Accordingly, we find no error in the prosecutor's closing argument.
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