State v. Turcotte
| Decision Date | 01 July 2020 |
| Docket Number | No. 2019-0071,No. 2017-0336,2017-0336 |
| Parties | The STATE of New Hampshire v. Daniel TURCOTTE |
| Court | New Hampshire Supreme Court |
Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant attorney general, on the brief, and Bryan J. Townsend, II, assistant attorney general, orally), for the State.
Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Daniel Turcotte, was convicted following a jury trial in Superior Court (Kissinger, J.) on four counts of aggravated felonious sexual assault and five counts of felonious sexual assault, all involving a minor. See RSA 632-A:2, I (2007) (amended 2012 & 2018); RSA 632-A:3, II, III (2007 & Supp. 2012). The defendant directly appeals his convictions, arguing that the trial court erred by denying his motions for a mistrial based on (1) testimony about similar, uncharged acts and (2) prosecutorial misconduct during closing arguments. In a discretionary appeal which we have joined with his direct appeal, the defendant asserts that the Superior Court (Abramson, J.) erred by denying his motion for a new trial based on the trial court's closure of the courtroom during closing arguments. We affirm.
We first address the defendant's arguments that the trial court erred in denying his motions for a mistrial. A mistrial is appropriate when the circumstances indicate that justice may not be done if the trial continues to a verdict.
State v. Wells, 166 N.H. 73, 76, 89 A.3d 156 (2014). To justify a mistrial, the conduct must be more than merely prejudicial; it must constitute an irreparable injustice that cannot be cured by jury instructions. Id. ; see State v. Ayotte, 146 N.H. 544, 548, 776 A.2d 715 (2001) (). When reviewing a trial court's ruling on a motion for a mistrial, we recognize that the trial court is in the best position to gauge the prejudicial nature of the conduct at issue and has broad discretion to decide whether a mistrial is appropriate. Wells, 166 N.H. at 76-77, 89 A.3d 156. We will not overturn the trial court's decision on whether a mistrial or other remedial action is necessary absent an unsustainable exercise of discretion. Id. at 77, 89 A.3d 156.
The defendant first argues that the trial court erred by denying his motion for a mistrial based on testimony of a detective who investigated the underlying charges against the defendant. At trial, the court ruled that the defendant's discussion with the detective about an incident involving the victim that occurred outside of Hillsborough County — the location of the underlying charges — was not admissible because it constituted "prior bad acts conduct." In accordance with the court's ruling, the State instructed the detective that she could not discuss a specific portion of her report about a prior bad act that took place in Salem.
The detective testified on direct examination that in her first interview with the defendant he admitted that he touched the victim's breasts and vagina, licked her vagina on more than one occasion, engaged in fellatio on more than one occasion, and had intercourse with her. The detective testified that in her second interview with the defendant he related specific information about acts involving the victim in Hillsborough including fellatio, and that the defendant stated that "during this time, he was giving her oral sex as well." She testified that the defendant also described having intercourse with the victim in Manchester.
On cross-examination, defense counsel sought to clarify whether the detective said that the defendant described performing oral sex on the victim in Hillsborough. The detective testified that the defendant Defense counsel asked, "So it wasn't in Hillsborough?" and the detective answered, "I believe it was in Hillsborough." Defense counsel then challenged that the detective's report did not include the defendant's admission that he performed oral sex on the victim in Hillsborough. Defense counsel asked, "You don't report that [the defendant] said he had performed, himself, cunnilingus on [the victim] in Hillsborough?" The detective replied, Defense counsel asked to approach the bench, and before counsel did, the detective added, "It's kind of hard to address that without saying that." The trial court immediately told the detective to stop talking. Defense counsel moved for a mistrial and, before excusing the jury to discuss the motion with counsel, the court instructed the jury to disregard the detective's "last statement," saying,
In support of the motion, defense counsel argued that the jury now knew that The court acknowledged the challenges of navigating testimony when the defendant had admitted to acts "that took place in multiple different counties over a long period of time." The court noted that the question on cross-examination "was very specific about Hillsborough and then the answer was ... in fairness to the witness ... the uncertainty was whether or not the cunnilingus admission related to Hillsborough or some other place." The court stated, "I think to ask the witness to have in mind every single location at every single admission ... suggests to me that the witness was not trying to intentionally avoid the court's order." The trial court denied the motion.
The parties then also discussed with the court the detective's testimony on direct that the defendant said cunnilingus occurred in Hillsborough, considering that the investigative reports did not specifically reflect that the defendant discussed cunnilingus happening there, but instead reflected that he said it happened multiple times in multiple places. Therefore, defense counsel requested that the court strike the detective's more specific testimony and instruct the jury to disregard it. Accordingly, once the jury returned, the trial court gave the following instruction:
[T]here was some testimony from the detective about -- she specifically testified that the Defendant made an admission regarding the act of cunnilingus taking place in Hillsborough. I am striking that testimony. It's to form no part of your deliberations in this case whatsoever. So just that portion of her testimony.
The defendant asserts on appeal that the detective's testimony "clearly conveyed that [the defendant] admitted to committing acts of cunnilingus in other locations that were not part of the evidence heard by the jury," thereby creating a high risk of prejudice due to "the similarity of the other acts" that could not be cured by the jury instruction given. We disagree.
"A mistrial based on the introduction of inadmissible evidence is warranted only when the challenged evidence causes irreparable injustice that cannot be cured by jury instructions." State v. Pandolfi, 145 N.H. 508, 512, 765 A.2d 1037 (2000) (quotation omitted). "In this context, when deciding whether a defendant suffered irreparable injustice, we examine whether the inadmissible testimony unambiguously conveyed to the jury that the defendant had committed an act which was criminal in nature." Id. "The justification for a mistrial increases when the prior act identified is similar to the charged crime." Id.
Even assuming the detective's statements unambiguously conveyed evidence of the commission of prior bad acts in uncharged locations, prior to the detective's answer to defense counsel's question on cross-examination the jury had heard her uncontroverted testimony about the defendant's admissions that, on more than one occasion, he engaged in sexual conduct with the victim including fellatio, cunnilingus, and intercourse. In light of this uncontroverted evidence, we are not persuaded that the detective's subsequent testimony constituted an "irreparable injustice" that could not be cured by the court's immediate instruction to the jury that the statement was stricken and was to form no part of its deliberations, and its subsequent detailed instruction. See State v. Boetti, 142 N.H. 255, 259, 699 A.2d 585 (1997) (). The trial court was in the best position to gauge the prejudicial effect of the detective's testimony implying that the defendant also admitted engaging in cunnilingus with the victim in an unnamed location. See State v. Kerwin, 144 N.H. 357, 359, 742 A.2d 527 (1999). Given our analysis, we deem the defendant's criticism of the sufficiency of the court's instructions to be without merit, and conclude that the trial court did not commit an unsustainable exercise of discretion in denying the defendant's first motion for a mistrial. See State v. Gaudet, 166 N.H. 390, 397-98, 97 A.3d 640 (2014).
The defendant next argues that the trial court erred in denying his motion for a mistrial based upon statements made by the prosecutor in his closing arguments. First, the prosecutor said, Defense counsel objected and, in a sidebar, argued that it...
To continue reading
Request your trial