State v. Turgeon, 92-154

• Decision Date: 19 August 1993
• Docket Number: No. 92-154,92-154
• Citation: 630 A.2d 276,137 N.H. 544
• Parties: The STATE of New Hampshire v. Normand TURGEON.
• Court: New Hampshire Supreme Court

Page 276

630 A.2d 276

137 N.H. 544

The STATE of New Hampshire v. Normand TURGEON.

No. 92-154.

Supreme Court of New Hampshire.

Aug. 19, 1993.

Jeffrey R. Howard, Atty. Gen. (Jeffrey W. Spencer, Asst. Atty. Gen., on the brief and orally), for State.

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

THAYER, Justice.

On September 23, 1991, the defendant, Normand Turgeon, was convicted in Superior Court (Groff, J.) of arson, RSA 634:1 (1986). The defendant unsuccessfully moved to set aside the jury verdict on the ground that the prosecutor's closing argument improperly commented on the defendant's failure to testify. For the following reasons, we affirm.

During the defendant's opening statement, counsel suggested that the defendant was intoxicated and that the fire started by accident. The prosecutor, in the State's closing argument, responded to the defense counsel's suggestions of accident as follows:

"The defense said to you ... in [her] opening that the ... defendant could have started this fire by mistake. Well, did you hear any evidence of that? Was ... there even any evidence presented to you that this fire was started by mistake? Did Mr. Turgeon tell you that he started this fire by mistake? "

(Emphasis added.) The trial judge immediately instructed the jury:

"Ladies and gentlemen, as I'm also going to instruct you in this case and as you already know, defendant has no obligation to present any evidence and no obligation to testify, and I will instruct you at length about that, so I'm going to ask you to disregard anything you've heard in argument of counsel relative to anything that Mr. Turgeon should have said or could have said."

(Emphasis added.) The trial judge also instructed the jury at the close of trial regarding the defendant's right not to testify.

The prosecutor continued her closing argument after the instruction:

"[W]hen defense counsel stands up and tells you this fire could have been started by mistake, I ask you: Look at what Mr. Turgeon has told you through the police and through that tape.

... [L]ook at what was told to you in defendant's opening argument and compare it to what was told to you through Mr. Turgeon through the police, and in [the videotape at the police station]...."

(Emphasis added.)

On appeal, the defendant argues that the prosecutor's first remark constituted impermissible comment on the defendant's failure to testify. The defendant further contends that any curative effect of the judge's immediate instruction was negated by the prosecutor's subsequent remarks in closing argument, and thus reversal of the defendant's conviction is warranted.

The defendant must satisfy two preconditions before triggering a State constitutional analysis: "first, the defendant must raise the State constitutional issue below; second, the defendant's brief must specifically invoke a provision of the State Constitution." State v. Fowler, 132 N.H. 540, 545, 567 A.2d 557, 560 (1989) (quotation omitted). While the defendant raised a State constitutional provision below, he has failed to fulfill the second precondition. He makes no reference to any State constitutional provision in his brief, nor does he make even a general reference to State constitutional grounds. Cf. State v. Ramos, 131 N.H. 276, 281, 553 A.2d 275, 279 (1988). Thus, because the defendant has not met his procedural burden to properly raise a State constitutional issue, we will address his federal claim only. See Fowler, 132 N.H. at 545, 567 A.2d at 560.

We construe the defendant's argument as raising his sixth amendment right to a fair trial under the Federal Constitution. He contends that the alleged prosecutorial misconduct denied him a fair trial and thus the judge erred in denying his motion to set aside the verdict. The determination of whether to set aside the verdict lies within the sound discretion of the trial court, a decision we will reverse only if we find an abuse of discretion. See State v. Houle, 120 N.H. 160, 161, 412 A.2d 736, 737 (1980).

As a general rule, a prosecutor is forbidden from commenting on a defendant's failure to testify at trial. See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). The defendant argues that this court has dealt only with prosecutorial commentary on the defendant's failure to call witnesses, however, and not with comments upon defendant's failure to testify. The defendant further contends that a prompt curative instruction by itself does not bar reversal or, in other words, he argues that such an instruction by itself will not always cure an impermissible comment.

A prosecutor's impermissible comment may require a new trial either because the misconduct "so poisoned the well that the trial's outcome was likely affected" or "the breach was so egregious that reversal becomes a desirable sanction to forestall future prosecutorial trespasses." United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.1987); see United States v. Ingraldi, 793 F.2d 408, 416 (1st Cir.1986). In making this determination, we look at the prosecutor's alleged misconduct and balance several factors: "the severity of the misconduct, whether it was deliberate or accidental, the context in which it occurred, the likely curative effect of the judge's admonitions and the strength of the evidence against the defendant." Ingraldi, 793 F.2d at 416; see United States v. Cox, 752 F.2d 741, 745 (1st Cir.1985). Examining the record with these factors in mind leads us to conclude that a new trial is not warranted.

We recognize that the misconduct in the case at bar could be considered a violation of the basic rule prohibiting prosecutorial comment on the defendant's failure to testify. See Griffin, 380 U.S. at 615, 85 S.Ct. at 1233. Although the jury could have understood the prosecutor's first comment as referring to the evidence presented in the defendant's case, the jury also could have interpreted the remark as pointing out the fact that the defendant failed to testify and tell the jury that he started the fire by mistake. The defendant argues that the prosecutor's subsequent remarks were further impermissible comments, constituting misconduct severe enough to effectively nullify...