State v. Sylvia

• Decision Date: 25 November 1992
• Docket Number: No. 91-103,91-103
• Citation: 616 A.2d 507,136 N.H. 428
• Parties: The STATE of New Hampshire v. Franklin J. SYLVIA.
• Court: New Hampshire Supreme Court

Page 507

616 A.2d 507

136 N.H. 428

The STATE of New Hampshire v. Franklin J. SYLVIA.

No. 91-103.

Supreme Court of New Hampshire.

Nov. 25, 1992.

John P. Arnold, Atty. Gen. (Donald Feith, Sr. Asst. Atty. Gen., on the brief and orally), for the State.

James E. Duggan, Chief Appellate Defender, Concord, on the brief, for defendant.

Frank J. Sylvia, on the brief and orally, pro se.

BROCK, Chief Justice.

The defendant was convicted after a jury trial in Superior Court (Goode, J.) of three counts of theft by unauthorized taking, RSA 637:3. On appeal the defendant argues that the trial court erred: (1) when it refused to give a curative instruction after the prosecutor misstated the evidence in closing argument; and (2) when it ruled that evidence of acute alcohol dependence could not be introduced to prove a lack of specific intent to commit theft. We affirm.

The defendant was an attorney practicing in Hillsborough until his disbarment in 1988. As part of his law practice, he served as the administrator of the estate of Frank Colburn, the trustee of the guardianship account for Melissa Lougee, and the executor of the estate of Elizabeth Nutting. In 1990, the defendant was indicted on six counts of theft, and the State proceeded to trial on three of the counts.

Count I of the indictment charged that the defendant, as administrator of the Colburn estate, obtained $44,664.76 as proceeds from the sale of Colburn's real estate and spent $34,767.16 of that amount on matters unrelated to the estate. At trial, the State presented evidence that the defendant wrote a series of checks against the $44,664.76 for various expenses, including a $9,000 check to his personal account to make payments on a construction loan on his own property. In addition, the defendant used the funds to pay claims of his other clients.

Count II of the indictment charged that the defendant, as trustee and guardian to Melissa Lougee, exercised unauthorized control over $14,000 in her guardianship account. The evidence showed that the defendant used funds from the guardianship account to pay expenses unrelated to the trust, including painting, electrical work, landscaping, plumbing, and real estate loans related to his own property.

Count V charged that the defendant, as executor of the Nutting estate, transferred $12,542.07 from Nutting's savings account to his law firm's trust account, and used the funds for expenses unrelated to the Nutting estate. The evidence showed that on May 26, 1986, the defendant paid $12,542.07 from the account to one Ellen Gibson as the proceeds from the October 1985 sale of her house.

At trial, the defendant admitted to writing the checks but denied intending to steal his clients' funds. He stated that he was unaware of the prohibitions set forth in the Code of Professional Conduct concerning use and commingling of client funds and argued that his purpose was to invest the money on his clients' behalf. The defendant testified that he viewed the money "like a mutual fund" where all the money is combined and invested. The defendant also sought to introduce evidence at trial that his acute alcohol dependence caused him to rationalize that his actions were in the best interests of his clients and that he thereby had no intent to deprive them of their money. Finally, the defendant asserted that he was not guilty by reason of insanity based on his alcoholism. Given the choices of guilty, not guilty, and not guilty by reason of insanity, the jury found the defendant guilty on all three counts.

The defendant first argues on appeal that the trial court erred when it refused to give a curative instruction after the prosecutor made what the defendant asserts were misstatements during closing argument. According to the defendant, on "[a]t least four" occasions during closing argument the State "expressed to the jury a completely erroneous misstatement of the law ... contrary to testimony from [the State's expert witness]." During the trial, the State's expert in estate administration testified that an estate inventory should list, inter alia, the balance of the decedent's savings accounts as of the date of death, and should establish the beginning balance for the ultimate account filed with the probate court. As part of the State's closing argument, the prosecutor reviewed in detail each theft committed by the defendant. The prosecutor argued that by the time the defendant filed inventories with the probate court indicating the contents of the Colburn and Nutting estates, he had already misappropriated money contained in those estates' savings accounts.

The defendant objected on the grounds that while the State's expert had testified that the inventory must show the value as of the date of death, the prosecutor "more than implied" that the inventories must show the value of the estate at the time of filing. The defendant contends that the prosecutor thereby affirmatively misstated the evidence with respect to inventories filed by the defendant with the probate court, and in doing so asked the jury to believe that he had deliberately lied to the court. According to the defendant, such was clearly prosecutorial misconduct, and, because the trial court refused to give a requested curative instruction, he must be given a new trial.

A prosecutor may draw reasonable inferences from the facts proven, see State v. Glidden, 122 N.H. 41, 48, 441 A.2d 728, 732 (1982), and has great latitude in closing argument to both "summarize and discuss the evidence presented to the jury and to urge the jury to draw inferences of guilt from the evidence." State v. Grote, 127 N.H. 748, 751, 506 A.2d 346, 348 (1986). To constitute prosecutorial overreaching, "the government must have, through gross negligence or intentional misconduct, 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. Lake, 125 N.H. 820, 823, 485 A.2d 1048, 1051 (1984). We do not agree that the statements in this case are of the kind found improper in the numerous cases cited by the defendant. See, e.g., State v. Bujnowski, 130 N.H. 1, 532 A.2d 1385 (1987) (prosecutor professed to jury his personal opinion of the guilt of the defendant); State v. Preston, 121 N.H. 147, 427 A.2d 32 (1981) (prosecutor argued to jury facts not in evidence); State v. LaBranche, 118 N.H. 176, 385 A.2d 108 (1978) (State testified about untried indictment pending against defendant).

The...